Davis v. Pinterest Inc.

Case Name: Davis v. Pinterest Inc.

Type of Case: Copyright infringement

Court: Northern District

Judge(s): U.S. District Judge Haywood S. Gilliam, Jr.

Defense Lawyers: Wilson Sonsini Goodrich & Rosati PC, David H. Kramer, Brian M. Willen, Thomas R. Wakefield, Andrew Kramer

Plaintiff Lawyers: Reese LLP, Michael R. Reese, Sue J. Nam, Charles D. Moore, George V. Granade; The Law Office of David C. Deal, P.L.C., David C. Deal

To defeat an award-winning photographer's claim that the image-sharing website Pinterest violates his copyrights, the company's attorneys from Wilson Sonsini picked away at his claims in steps.

The photographer, Harold Davis, is an artist and author in Princeton, N.J., who creates museum-quality photos that Pinterest users frequently post or "pin" to their accounts on the site. One of his photos, "Duet of Daffodils," appeared on Pinterest 4,676 times within just two weeks. In his litigation, Davis said he "has no quarrel" with users pinning his photos to their Pinterest "boards."

Rather, he complained that Pinterest often displays uploaded, copyrighted works next to paid advertisements known as "promoted pins." In his lawsuit, he claimed it does that by embedding descriptive data into the "variants" of pinned works it displays so that its algorithms can find related ads. For instance, ads pitching other artists' rose images were placed adjacent to Davis' "Kiss From a Rose."

Brian M. Willen

In that way, the company monetizes -- and infringes -- his copyrights, according to his lawsuit. Davis v. Pinterest Inc., 4:19-cv-07650 (N.D. Cal., filed Nov. 20, 2019).

The company's attorneys initially knocked out his claim for contributory infringement on motions to dismiss. Judge Haywood S. Gilliam Jr. held in March 2021 that Davis had only managed to allege that Pinterest was "indifferent" to whether users were pinning copyrighted works, not inducing or helping them to do so.

By the time the judge decided their motion for summary judgment, Davis' claims of direct infringement had been whittled from 51 photos to 35.

The Wilson Sonsini team's main argument for their motion was that Pinterest was protected by the Digital Millennial Copyright Act. The act's safe harbor provision shields an online service provider from displaying copyrighted material posted by users except when the site has received "a financial benefit directly attributable to the infringing activity."

The attorneys showed that the "variants" Pinterest creates are basically images modified to display properly and do not contain information used to target advertising. "Plaintiff's conclusory assertions to the contrary are simply not enough to raise a material dispute of fact on this issue," Gilliam held.

The plaintiff's attorneys claimed Pinterest's business model was premised on placing ads near related copyrighted works. But the judge concluded that the evidence they provided "does not establish that Pinterest obtained a financial benefit distinctly attributable to the infringement alleged here."

Pinterest's lead counsel, David Kramer, declined through a spokesperson to discuss the case. The plaintiff's attorneys did not respond to a request to comment on the ruling.

The judge's decision is now on appeal.

-- Don DeBenedictis