Photographer in Legal Battle Over Unsplash Image After a User Uploaded the Image to Photo-Sharing Site Illegally

Photographer in Legal Battle Over Unsplash Image After a User Uploaded the Image to Photo-Sharing Site Illegally

A photographer has landed himself in legal trouble after using a photo from free licensing site Unsplash. He was hit with a copyright infringement notice, demanding a fee. Upon trying to find the image again on Unsplash, he discovered it had been removed from the site.

The use of Unsplash and free image licensing has been the subject of debate between photographers online, and this case is sure to only stir the pot.

Photographer and business owner Simon Palmer recently used a stock image from Unsplash for his blog. His team had a brief of “copyright-cleared images” only, so naturally, they assumed images from Unsplash would come without issue, given the nature of the site.

However, Palmer has now been contacted by Copytrack, who demanded a fee. Upon trying to seek out the image on Unsplash, both the photo and the photographer who uploaded it have seemingly disappeared.

Palmer tells The Phoblographer:

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.

It’s here the story gets messy. Upon doing some digging, Unsplash found the image Palmer used was not actually owned by the user who uploaded it, thus meaning the usual license provided by the platform is not valid. The email from Unsplash breaking the bad news also admitted it’s a common occurrence and 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 are now insisting that failure to pay will result in further legal action. They also point out that the image at the center of all of this is not covered by the Unsplash license, as it has a recognizable person within it. This is indicated in Section 5B of their terms of use. It’s a valid point and one that calls into question the integrity of Unsplash itself, given that it is essentially bating photographers into a trap, misleading them into using photos that aren’t protected by its own policy.

Despite Palmer raising the point that Unsplash should be liable for images they license through their site, Copytrack’s website FAQ reveals the operator of the website where the image was displayed remains primarily responsible for the infringement, regardless of what any third party said.

Palmer is concerned he’s the victim of copyright trolling, and that he’s been set up. After all, it’s easy, right? Upload a photo to a site like Unsplash, wait for someone to use it, then remove it, and file a claim.

What this holds for the future of Unsplash remains to be seen.

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54 Comments

Previous comments
Eric Mazzone's picture

It's not that simple, they already used the image and gained from that use. You can't take a piece of paper from someone, write all over it, then hand it back after they call you out on it.

Oliver Ottley's picture

Got it. Even though they were completely oblivious to the fact they were being deceived about where the paper came from in the first place. 🤷🏿‍♂️

Am I right that unsplash never guaranteed any clearance and rights? like other platforms like pixabay? If someones wanna use stock imagery then only from reliable sources.

Paul Lindqvist's picture

Well, he used a service that is free, and that service provided him with an image they thought was free, in the end, it wasn't free.. Can't but smile. :-)

Gion-Andri Derungs's picture

So I did a little research. Copytrack is well known in Europe for such behavior. My suggestion is, take a lawyer! Sad to say, but typical copyright infringement behavior of German law firms...

Paul Lindqvist's picture

Such behavior? How does anyone side with the so-called "photographer" who could not be bothered to get a proper license to begin with?

Gion-Andri Derungs's picture

You got it wrong. I don't side with the "photographer", but this company Copytrack is making many problems. The automatically calculate way too high costs for the picture and pressure to pay! I only wrote about Copytrack, nothing else. The case of the photographer is a different one and that is a big problem of Unsplash.

Paul Lindqvist's picture

Yeah they make problems for people who uses other peoples images without licenses. I don't see that as a problem, that or course might have to do with the fact I'm a photographer by profession. What is your profession? As you seem to feel for the ones that uses other people's works without licenses.

Gion-Andri Derungs's picture

Bro be careful what you imply! I have a problem with companies which are calculating some phantasy prices and then trying to force you for paying.

I have never said that it is not okay to claim your rights. But this company....

Don't expect of you to understand that.

Benoit Pigeon's picture

Do you have a cell phone? 1.5 billion sold in 2017 and they have raised the price since like mad. I hope you have a serious problem with way overpriced phones as well.

Gion-Andri Derungs's picture

Yes I have. That's the reason why my phone only costs 150 bucks...

But let's stay with the phone example for a moment. Do you think it 's okay, when you have to pay for the same phone a random, auto generated price, that is way to high? Now you take a lawyer and they drop the price massively. If you don't, you pay too much. That's exactly what this company does. It has also it's reason why they are a German based company. This has become an industry in Germany over the past years, also because of the sometime really ridiculous court decisions in Germany for such cases. Also, many of these companies never go to court, if you not pay... So, sorry, that I not trust a German company that makes infringement claims. To much weird stuff happened there in the past!

Again, it's nothing wrong to claim your rights, but do it the correct way!

Paul Lindqvist's picture

I'm not your "bro" and I just like you are entitled to an opinion. So you can keep your heed of warning.

As for fantasy prices, who are you to dictate the worth of other peoples work. If you steal images for commercial use or simply do not do your due diligence you will have to pay. Since this service is free for the photographers someone obviously have to pay for it. In this case the party who thought everything should be free to begin with. Sorry your not getting any sympathy.

Gion-Andri Derungs's picture

Don't mind my sympathy dude. You never had it, you'll never get it.

BTW I have the same right, like you accusing me stealing. You're not worth my time dude!

Unsplash and other FREE photo licensing sites, including Creative Commons, are NOT risk-free! Since these sites don’t (fully) vet their contributors and their images, they offer NO legal protection, warranties, and indemnification to users. In fact, using CC and other FREE images commercially can pose the MOST financial liability to end users.

If you choose to exploit these FREE image licenses in your media, you’ll have to conduct lots of due diligence to verify the copyright author or claimant and provenance of the image: Does the person who uploaded the image have the legal authority to place the image on these FREE sites?

By doing a good-faith + thorough review of the FREE image and keeping detail records of your findings, you might be able to claim “innocent infringement” (aka limit your damages to as low as $200) if a third-party sends you a demand letter.

Even though I can’t stand Getty, it may offer (some) reassurances that the image has been cleared for licensing, and that would help mitigate your damages if you were accused of copyright infringement.

There is a reason why creditable stock agencies like Shutterstock include something like legal indemnification with their licenses: https://www.shutterstock.com/license-comparison

Even Shutterstock cannot be 100% sure that no user is uploading any stolen images. But at least they take some effort to validate image uploads and -in contrast to Unsplash- requires model releases.

So thanks to this legal indemnification Shutterstock has a good reason to double-check the uploaded images. Unsplash in contrast just doesn't care. You get what you pay for.

Gion-Andri Derungs's picture

"Thieves Are Uploading Other Peoples' Photos to Shutterstock: Here's What to Do if It Happens to You"
https://fstoppers.com/legal/thieves-are-uploading-other-peoples-photos-s...

It can happen there as well and if you use such an image you will get an infringement claim and you have to pay.

Yes, but in this case you, as an image consumer, will get compensation from Shutterstock. For a standard license up to $10.000, for an enhanced license up to $250.000.

Should be enough to pay most infringement claims if you have chosen the correct license.

From Unsplash you get: NOTHING

That is the difference.

Edmund Devereaux's picture

I keep seeing this, "the photographer should of used their own photo" a lot in the comments. This is a myopic view of the issue. There are millions of bloggers and thousands of businesses that have been using Unsplash images for content. The issue remains that Unsplash is the problem here, not the photographer. Get off the photographers back and let us go after those who have made significant money off our need for vindication that we are photographers. We are the gold miners and they are the shop keepers and equipment makers, the only one who actually made money during the gold rush.
I find it ironic that this article receives so much criticism about the photographer while hosted on a site that regularly uses summaries of YouTube videos created by other people. YouTube does not require a model release when video's are uploaded does it or proof of creation? So how is that different?
The fact that we as photographers on this site in particular share images that create content for the site, revenue for the site and we do this for free. Why, because we choose to support it. Does this site require proof that the photographer took the photo and has rights to use the recognizable person in the frame? See the irony of your complaining about your fellow photographers here?
I like Unsplash as an idea, like free college tuition, just not the realities of the world we live in. This makes me glad I am not a lawyer and especially glad I no longer work in yellow page ads. Real stock agencies are still the best way to get images and this is what these stock photo companies need to push and create awareness that they are safe and will protect the consumer of their images from copyright trolls and fake accounts.
And the photographer fighting this, they pay for the use of this image, they messed up and should of known better, nothing good in this life is free.

Benoit Pigeon's picture

So you say a photographer uses someone else work for free and this should be okay? Nope I have no sympathy for anyone who short cuts other photographers and get caught in a trap.
You ask how is this different from using clips on YouTube? Zero difference to me because I don't use their work. I have no clue why people keep sharing others work, video or still without an agreement but they do. They take the risk, all of them, just like the herd followed Panuge's sheep.

Edmund Devereaux's picture

That is the original photographers business what they should do with legitimate images they created. Photographers all over the world offer their images free to use since the majority do not do it for monetary gain. Instagram has made a business off of the simple biology of how likes make people feel. Some people just share because they want that feeling. That is what sites like Unsplash do as well. In this case, the photographer got caught and needs to pay for the use. A simple Google image search before using it would have been prudent.
Unsplash does not verify copyright, ownership, property release or model release and there is the liability they, like all content curating sites, should be responsible for. Cure the illness, not the symptoms.

Benoit Pigeon's picture

That's the point, the photographer did take and used the image wlthout checking if Unslashed had all proper documentation. Had he paid even 20cent in a recorded transaction, he could demonstrate his intention was legit. But he has nothing and that's one strong reason for anyone to point at him. I have photographers contact me to use images of mine for publications. They always pay me ahead of the use on their own with a check or paypal to record the transaction. There are rules in this world, people can make their own, but the legal system is what it is. I pardon anyone for what ever they have done wrong, but you know what, the law doesn't care what I think.

Nico Trinkhaus's picture

That's nothing new. Same happend many times with random people uploading other people's works to Wikimedia and adding CC Licenses to it. Unsplash is just taking it to the next level.

As a company: If you want to use a photo, pay the rights-holder for it and make sure the contract confirms they own the rights on the photograph.

There is absolutely no other way currently existing, that would keep you safe from situations as mentioned in the article if you use photos for free, as I don't believe any photographer would give you photos for free *AND* do the paperwork for you as well. You get what you pay for.

Desmond Stagg's picture

There are a number of valid comments on here but I think the core point has been overlooked. It boils down to STEALING! It is as if, the culprit who uploaded the photo which was NOT his/her work broke into the photographers premises and took the print and/or downloaded the file directly from the photographers computer, scanned the print and then uploaded same. As I said, it is nothing more than STEALING and is, in all civilised countries a prosecutable offence.

Whether it was a photo, a pencil or the cash box it was STEALING!

We see this as a daily occurrence on social media.