December 5, 2019

British photographer, Simon Palmer, is warning others to be careful when using free stock photo website, Unsplash, after he was cornered into paying a licensing fee for publishing a purportedly free image.

An e-mail from Simon to Unsplash after he was accused of copyright infringement for publishing an image he sourced from Unsplash. Source: Phoblographer.

Unsplash describes itself as having over one million ‘free (do whatever you want) high-resolution photos brought to you by the world’s most generous community of photographers’. Photographers contribute by uploading high-res images, which are available for a free download with a licence covering commercial usage. In return the photographer receives positive validation, as they are informed how many times an image is viewed and downloaded.

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Like many other small businesses, Simon’s published Unsplash images for blog posts on his non-photographic businesses website. One of the images wasn’t uploaded to Unsplash by the actual copyright holder, who used the attack dogs at Copytrack, a copyright detection and enforcement agency, to demand payment from Simon.

One of many issues with Unsplash is it doesn’t have a stringent vetting system to determine the credibility of contributing photographers. It’s remarkably easy to upload and download images through the platform. While it’s unclear why some rogue operator would upload an image which is not their own, it does happen. This makes Unsplash a potential starting point for unwarranted copyright disputes.

‘…It troubles me that Unsplash continue to operate with a clear loophole in their basic business model.’ Simon told Inside Imaging. ‘I could put an image up on Unsplash using a fake name and a burnable email address, leave it there for a few months and monitor its use. Then [I could] pull it [down], place it with Copytrack or another webcrawling copyright system, and leave it to the Copytrack system to find it and start the automated process of catching people out.’

The Unsplash Licence
Unsplash, of course, denies any liability the moment a user violate its terms of service, which covers things like image copyright infringement. It also claims to have no responsibility over monitoring what’s uploaded.

‘There is no reasonable way for us to monitor all of the User Content [images] that gets uploaded to or posted on the Service, and we are under no obligation to you or the other users to monitor, edit, or control the User Content that you and other users upload or post to the Service. This means that we are not responsible for any User Content on the Service and you agree not to make any claims against us on account of User Content.’

On the other hand, contributing photographers authorise Unsplash to ‘enforce any violations of the sublicenses we grant in the Photos to others. In other words… authorise us to enforce your copyrights in the Photos on your behalf.’

There is one condition to the Unsplash Licence – which grants users an irrevocable, nonexclusive, worldwide copyright licence – this ‘does not include the right to compile photos from Unsplash to replicate a similar or competing service’.

In other words, Unsplash won’t allow someone to download images to create another free library service; or sell photos through a stock agency like Shutterstock or Adobe Stock. Bali-based professional photographer, Dominik Vanyi, published an article after using Unsplash for two years to see if the exposure would lead to paid work. Surprise, surprise, it didn’t – despite over 120,000 image downloads – but he did discover one of his images cropped and available for sale on Adobe Stock. Unsplash told Dominik they’d request Adobe Stock remove the image.
The Unsplash business model relies on revenue generated from online advertisement, but more recently it has entered into partnerships with software companies to have its library integrated into web and graphic design apps. So only Unsplash is allowed to make money off its contributors content. Seems fair.

Back to Simon
After Copytrack demanded payment on behalf of a photographer, Simon found the image his business used had disappeared from Unsplash.

Despite having evidence to support his claim, Copytrack insisted the Unsplash Licence was invalid as the copyright holder didn’t permit the upload.

As Simon was the ‘end user’, Copytrack said he was liable to pay the fee. It seems more likely Simon, a small business owner, was viewed as low hanging fruit and easier to pursue for a fee than Unsplash, which terms of service state it has no liability. There is probably also a fleet of lawyers ready to challenge Copytrack in a fight to the death.

In an e-mail to Copytrack, Simon said he ‘acted in good faith’ by using the free image platform. He made an effort not to commit copyright infringement, and felt Unsplash should hold a degree of liability for hosting the offending image.

Copytrack, which attempts to strong arm a fee with minimal effort, wasn’t keen on challenging Unsplash. In the end, Simon paid the licensing fee.

‘Quite a few other companies have used the [offending Unsplash] image, one of which was a legal organisation. Unsplash have remained non-communicative since I ended up paying the fee, and I no longer use their system for images. I have emailed them on countless occasions with no further response,’ Simon told Inside Imaging.

Simon was disappointed that Unsplash made no effort to assist him, or help track down the source of the fraudulent image.

‘Unsplash can hold up their hands and say that they ask the photographer to declare its their own image and that they own the copyright [by agreeing to T&Cs when they sign up]. But with no tracing and knowing you can fake an IP address as well, it means that they couldn’t track it even if they wanted to, which they clearly couldn’t care less about…’

Unsplash has been recently integrated into PicMonkey, a cloud-based image editing and design platform, as well as a Mac web design app, RapidWeaver.

Simon is concerned graphic and web designers using the software will unknowingly commit copyright infringement.

‘In some respects, they offer a small hope for budding quality photographers of getting their work out there, with the distant carrot of business as a result of people seeing and using the free images,’ Simon said. ‘It’s the 21st century version of someone saying “I’ll give you a photographers credit in the byline if you let us have your photographs for free”. In a market where photography has been commoditised to where anyone with a camera phone thinks they can created stunning images, Unsplash makes it even harder for working photographers to make ends meet, and put food on the table.’

Check out Simon’s photography and conservation work at Cheetah World.



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