How Using Unsplash Got This Photographer Into Legal Trouble

We’ve been warning photographers about losing rights to their work when they upload photos on Unsplash. Now, a photographer and business owner tells us about the legal issue he could be facing after using one such photo from the platform. 

If you’ve been considering posting stuff on Unsplash to get traction for your work, we’ve been very vocal about what you stand to lose. This time, we want to share what it’s like when you’re on the other side of the fence, and the legal problem you could find yourself grappling with when you source a photo from Unsplash for use on your blog or website. Simon Palmer, a photographer, cameraman, and business owner, recently shared with us an unsavory experience that unfolded after using a photo from Unsplash for a blog. His marketing team has been instructed to use only copyright-cleared images for this purpose, so they thought it wouldn’t be an issue. However, sometime later, they were contacted by international copyright enforcer Copytrack with a copyright infringement notice, requesting a license fee. He double-checked the image on their blog and was sure they downloaded the photo from Unsplash and credited the photographer as was indicated on the site.

 

Upon checking Unsplash again, he found out that the photo and the photographer were no longer on the site. “I contacted Unsplash, and raised a ticket with them, and until today, I hadn’t had much communication aside from one of the folks at Unsplash saying they would pass it on to the person who handles the legal issues,” Palmer told us in his e-mail.

 

 

This is where things get messy. Copytrack replied to him saying that the Unsplash user does not have the rights to the image, and the license provided by the platform is not valid. The representative added that “often photographers are unaware that their images are uploaded on the platform and most would certainly not give away their images for free.” Copytrack also emphasizes that if he doesn’t pay, they will take the matter to court. This, of course, will result in higher legal costs and damages for him, making the settlement through retroactive purchase of a license a less expensive option.

The Copytrack representative adds that the image in question is not covered by the Unsplash license, as it has a recognizable person. This is indicated in Section 5B of their terms of use. And yet, the platform has LOADS of photos of this kind uploaded and widely on display on their website. Why the platform continues to accept images that are not covered by their license, effectively putting image users in this legal trap, is anyone’s guess.

On their website FAQ, Copytrack also says that if the infringing image was provided by a third-party (friend/colleague/supplier, etc.) who said it’s okay to use the image, the operator of the website where it was displayed remains primarily responsible for the infringement. “We advise you to contact a lawyer in order to clarify whether you can claim compensation of damage against them,” they added.

What worries Palmer is that this could be a case of copyright trolling. According to the Online Paralegal Degree Center, this happens when a person or company enforces copyright it owns in an aggressive, opportunistic, or money-seeking manner. It does seem strange and shady that the photo in question and the photographer behind it disappeared from Unsplash just as when this copyright infringement claim came up.

Palmer’s case also exposed the legal loophole that copyright trolls — photographers or otherwise — can take advantage of through photos posted on Unsplash. Upload a photo that isn’t covered by the Unsplash license, look for someone who used it, delete it from the platform, then file a copyright claim. Worse, if the Copytrack rep Palmer got in touch with is right, some fauxtographers out there could even be doing the stealing by uploading the work of legitimate photographers and passing them off as their own on the site.

We got in touch with Copytrack for their statement on this matter, but at the time of publishing this piece, they haven’t replied. We’re still waiting to hear from them. 

So, whether you’re uploading work or using images on Unsplash, looks like it could only spell trouble for you. Our stand remains: just don’t support it. Even Zack Arias says don’t, as “everyone is just one good lawsuit away from the whole thing taking a nose dive.”

 

UPDATE (July 31st, 2019): COPYTRACK sent us their statement on the issue, confirming that they’re indeed handling Simon Palmer’s case, and warning about using high-quality free images circulating online.

COPYTRACK searches for and prosecutes copyright infringements on the Internet on behalf of photographers, graphic designers, and agencies. We can confirm, that the case described in the article “How Using Unsplash Got This Photographer Into Legal Trouble” published by The Phoblographer on July 15, 2019, is handled by us.

Even though we do not comment on ongoing cases we can certainly give some general thoughts on free image platforms like Unsplash. We have several cases in which third parties uploaded images without permission to free image platforms. These persons were never authorized, which is why the image platforms are not entitled to grant legally valid licenses. The reasons for this behavior are various: to adorn oneself with borrowed plumes, make platforms more attractive by increasing the choice, etc.

In many cases, we tried to contact the platform to find a general solution that is best for both the rights owner and the image user. We have also been in contact with Unsplash in several cases to find a global settlement but weren’t able to conclude the negotiations until today. Therefore, we will further claim damages against the image user individually or offer him/her to buy a subsequent license directly from the real rights’ owner via our service. We are also happy if the image user addresses himself to the platform to increase awareness that they might change something in their progress to avoid copyright infringement.

We also want to emphasize that it is a very serious accusation saying that our customers upload images to free platforms and then go after image user to make quick money. The customer in the particular case is a professional photographer who is selling his images via several well-known photo agencies and has been a reliable customer of many years. We see absolutely no reason to believe that his claims are scam.

It is understandable that Mr. Palmer is angry because he relied on an agency and now faces legal charges. But as always, especially on the internet, one should remain skeptical when a bargain seems too good. High-quality images for free may exist on the internet, but it is rather the exception to the rule. In the end, the person using someone else’s intellectual property is obliged to make sure that everything is legal and ok. There is no such thing as good faith in copyright infringement.