July 26, 2019
"Free" photos doesn't necessarily mean free usage

One of the most important (and often overlooked) facts to remember about copyright law is that it isn’t a zero-sum game.

Brands, agencies, distribution platforms, content creators and consumers can all benefit from a consistent and transparent set of usage guidelines in which content made by all creators (amateur, independent, professional, etc.) is properly compensated for and protected.

In the case of Simon Palmer (a business owner and photographer), these guidelines would have been a saving grace. Palmer is currently embroiled in a legal battle with Unsplash, a “source of freely usable images,” after he downloaded an image of a woman walking next to a horse for his company’s blog. He was soon met with a copyright infringement notice from Copytrack requesting him to pay a license fee.

According to DIY Photography:

“When Palmer searched Unsplash for the photo, he realized that neither the photo nor the photographer were on the website any longer. He contacted Unsplash and raised a ticket with them. However, he says that he didn’t have much contact with them since. They only said that “they would pass it on to the person who handles the legal issues,” but this is where it ended. At the same time, Copytrack was still pressing him to pay the license fee, or face the legal action which would cost way more.”

Upon taking a closer look at Unsplash’s terms and conditions, you’ll notice that while “Unsplash grants you an irrevocable, nonexclusive, worldwide copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free…” that usage is actually quite limited:

Note that the Unsplash License does not include the right to use:

- Trademarks, logos, or brands that appear in Photos

- People’s images if they are recognizable in the Photos

- Works of art or authorship that appear in Photos

‘Clearing’ or ‘releasing’ various intellectual property (IP) contained in a photograph or video is the most critical step in preventing a situation like Simon Palmer’s from happening in the first place. There are layers of copyright in photos and videos. Perhaps someone in the picture is wearing a Nike shirt; maybe someone has a tattoo that is visible in the image -- the person with the tattoo, as well as the tattoo artist both need to give their permission. An additional level of permission would be required if the tattoo art is copyrighted (think: Popeye or Minnie Mouse). There are many ways marketers can unintentionally find themselves outside the bounds of copyright law, so they have to be exhaustive in the clearance process.

At Catch&Release, we sometimes license stock content from sites like Unsplash, but we fully vet the shot by tracking down the photographer who owns the rights, as well as any models that appear in the shot, and mandate a copyright agreement be signed. Plus, Catch&Release indemnifies both the photographer and the entity (usually a brand or agency) that purchases the content, to ensure all parties are fully protected and 100% compliant. By doing the due diligence up front, we help our customers (as well as the content creator) avoid legal issues later.

Don’t get us wrong - we love searching Unsplash. The selection of high-quality photos is massive, and the act of searching is easy, fast and quite enjoyable. Unsplash is a powerful platform for photographers to share their work and gain recognition. That said, even though we’re living in the digital age and its common practice for people to share their work on content platforms like Unsplash, it’s imperative to remember that sometimes the terms on these sites are ambiguous and nuanced, and therefore need to be read extra carefully. These content platforms (and the marketers that use them to find inspiration and source photos for their materials) need to be fair to and advocates for creators by ensuring they are giving credit where credit is due.

This blog post should serve as a reminder that companies should never assume “terms and conditions” are sound, or that an artist’s work is freely available, even if it lives on a “free” photo sharing site.

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