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.

Log in or register to post comments

54 Comments

Leigh Miller's picture

Regardless of what this is I'm happy the discussion has started.

We rise or fall together when it comes to ownership and compensation for our professional work.

If Unsplash wants to engage in this type of business then they should do as other "real" stock agencies do IMHO.

Marcus Joyce's picture

Yeah like that guy who sold a photo of a photo somebody else took....

It's pretty obvious that creatives, be they photographers or not will now quit using Unsplash.
It's time that Unsplash reaped what they've sewn.

Wil never happen. The "free" pictures are too compelling. If one picture is a rotten egg they'll see it as collateral damage.

michaeljin's picture

Dear photographers. Take your own photos... You literally have all of the skills and equipment. What's the point if you're not going to use them?

Eric Mazzone's picture

Not all photographers are jacks of all trades and can, or will, shoot everything. Sometimes someone needs a different type of photo to demonstrate something, like product photography when they're a PORTRAIT photographer, and will license a proper image.

This is NOT wrong to do, but it IS wrong to think every photographer has to do everything on their own.

Leigh Miller's picture

Why would a photographer need an image to demonstrate "product photography" if it isn't their jam?

Or do you mean...an image of a product that they don't have available ?

Eric Mazzone's picture

It's NOT for them DOING "product photography" it's photos OF THEIR products they offer for clients to buy. God, are you illiterate?

Leigh Miller's picture

Oh resort to silly name-calling huh...

you still make zero sense...but that explains your post anyway.

Logan Cressler's picture

Perhaps those photographers can use stock images from reputable sites then, that have a signed model release and copyright license. Perhaps if they dont have an image appropriate for their blog post, then perhaps they shouldn't be writing it to begin with, as clearly they have no experience in that particular aspect of photography so should shut their yaps or find someone that does to help them out.

Eric Mazzone's picture

His concern about the copyright trolling would ONLY be valid, IF the copyright owner were the one to upload to Unsplash. As the copyright owner did NOT upload to Unsplash, and a third party did without permission, this is NOT copyright trolling.

Further, it is the case, that some photographers DO offer images under Creative Commons licensing, with the terms being CC+Attribution, that attribution part IS NOT OPTIONAL, they also offer the same images for use WITHOUT attribution for a fee. When a dumb ass, gets a CC+Attribution license and does NOT follow the terms of that license and GIVE the attribution, it is fully in the rights of the copyright owner to pursue legal action for the license terms violation. This also, IS NOT, copyright trolling, it's offering a DISCOUNT under particular terms.

Eric Mazzone's picture

Further, Unsplash requires one to "register" the use of an image, Unsplash has a record of the license request. As such, Unsplash should send to licensees notices if and when an image is removed for copyright infringement.

Bert McLendon's picture

It's easy for a troll to have a second account to do the uploads and one to file a complaint.

Marcus Joyce's picture

No way people are far too honest to do that!!

Bert McLendon's picture

Sounds like the photography version of Vimeo. License music, upload it to Vimeo and then get hit with copyright infringement even though you "licensed" it correctly on your end. Sounds scammy.

Leigh Miller's picture

What are you talking about?

You can't license something correctly from a site like Unsplash. Their entire reason for being is to aggregate images etc and make it available to people who don't want to pay a decent price for them

user-244549's picture

I confess I love it when the "sharing economy" implodes.

Unsplash is not acting in any professional photographer's interest. This is true even if a bunch of idiots has convinced themselves that "exposure" is worth having.

Their system is impossible to police and as such... anyone who uses Unsplash risks CopyTrack (or another such service) kicking down their door. No tears shed by me. People need to stop expecting "free stuff" all the time and start paying for it.

Benoit Pigeon's picture

Someone is getting Splashed.

I'm surprised this doesn't happen more frequently. Unsplash - or naive photographers using the site - is an open gold mine for people to abuse.

The End user should pay the photographer, the sue the provider of the image, this is the only way a photographers copyright can be protected. It may not be fair on the end user, but it should be the end users responsibility to to ensure the media they are using is licensed correctly.
Could you imagine if this was a song by Taylor Swift ....

If in doubt PAY the photographer...

Logan Cressler's picture

The photographer should use their own images when writing an article about something, if they dont have them, then why are they flapping their jaws about something they have no experience in? You can buy stock from reputable stock agencies and still wind up in this same place. Its a different world now, and you cannot trust microstock sites to do their job and ensure it fair to use.

In the end, write articles and use your own images, you are a damn photographer, act like one. Dont shoot that style of photography? Then stop teaching others about it you hack. Stay in your own lane, use your own content, and everything will be fine.

The one thing I learned from this article is that I should look into CopyTrack further. They sound like Pitbulls. Thats who I want working for me.

Leigh Miller's picture

"In the end, write articles and use your own images, you are a damn photographer, act like one. Dont shoot that style of photography? Then stop teaching others about it you hack. Stay in your own lane, use your own content, and everything will be fine."

So true...

Logan Cressler wrote, “The one thing I learned from this article is that I should look into CopyTrack further. They sound like Pitbulls. Thats who I want working for me.”

There are many similar services like CopyTrack that search for on-line unlicensed uses of your images. When an infringing use is located, the alleged infringer is contacted (alleged because the use may be a Fair Use exception) with a money demand letter attached. The business model of CopyTrack and others is to push infringers to settle quickly so they can move on to the next infringer. It’s NOT about going to trial and getting their photographer client the most money damages.

Higbee & Associates is another infringement tracking & settlement entity. It’s a California-based IP law firm. I have no experience or affiliation with this company; you’ll have to do your due-diligence before using their services: https://www.higbeeassociates.com/copyright/enforcement.html

Most of images tracked by CopyTrack are probably not timely registered with the US Copyright Office. Unless CopyTrack (Germany-based?) has offices in the US, I’m not sure it would have legal standing to pursue American-based infringers. Without the US photographer timely registering his/her photo copyright, CopyTrack can’t proceed to trial. If they do, the can ONLY pursue actual money damages (typically the licensing fee) and the disgorgement of profits the infringer made (if any!); those damages will likely be out-stripped by CopyTrack’s legal fees.

If you timely register your photo copyrights with the US Copyright Office you should consider contacting a seasoned copyright litigator to pursue the infringement (settlement), as you’ll likely get (much) higher money damages vs. using CopyTrack’s services.

Logan Cressler's picture

Less about money, and more about time. I dont have time to look for copyright infringers. And I am not after the highest settlement, more after punishing those who steal mine and use them knowing they are doing something wrong. I am currently investigating many options.

You assumption that because they are in a Belgian company, they cannot pursue US cases is not correct either, nor is your belief that the images need to be registered with US copyright office, in order to go to trial. You specifically say they "cant proceed to trial" which is outright false. I am not sure your motive but clearly you have an agenda with the way you try to shape your words.

My guess is you are some kind of copyright attorney.

Logan Cressler wrote, “…a Belgian [German] company they cannot pursue US cases is not correct either, nor is your belief that the images need to be registered with US copyright office, in order to go to trial.

Logan, you’re technically correct; I should have been more clear--my mistake!

Creatives/Photographers who belong to a Berne Convention signatory country (pretty much all of Europe and other international countries) do NOT have to register their photo copyright claims with the USCO to have “legal standing” (i.e., the right to sue) to pursue US-based copyright infringers, as Berne requires no copyright registration formalities.

My comment emphasized(!) that “timely” registering copyrights with the USCO provides critical legal benefits for ALL photographers, something your comment didn’t address.

Also, I can’t determine if your comment spoke to US authored works; so, I’ll comment on those works as well.

I’ve provided statutory legal citations and third-party attorney links to support my comments. If you feel I’m mistaken, please provide me with your substantive legal proof so I and others reading our posts can review.

Americans photographers MUST register their copyrights (even if they were not “timely” registered) (or the USCO has issued the photographer a “refusal” copyright registration letter) to have legal standing to pursue infringers in federal court. This is confirmed by 17 USC § 411(a) and by the US Supreme Court’s spring 2019 unanimous opinion in “Fourth Estate v. Wall-Street.”

American AND international photographers who do NOT obtain a “timely” registered copyright Certificate of Registration (Certificate) can ONLY pursue “actual money damages” (typically the licensing fee lost) and the disgorgement of profits the infringer made from exploiting the image (if any!), both of which can be difficult and expensive to prove during trial (plaintiff must hire forensic accountant/s, photo/licensing expert/s, and other specialists to determine the amount of money lost).

Win or lose at trial, the photographer will be responsible for paying for his/her entire legal costs and attorney fees (see 17 USC § 504(a)). In the end, the photographer’s attorney fees will most likely out-strip any money damages s/he receives via adjudication. In short, whether you’re an American or European photographer, it won’t really be economically feasible to pursue US-based infringers in litigation without having a timely registered photograph.

The Copyright Alliance writes, “According to an AIPLA report [The American Intellectual Property Law Association] …the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000.” (see https://copyrightalliance.org/ca_post/small-claims-on-the-horizon/).

If a US editorial magazine infringes one of your not-timely registered images (and it’s not within the scope of Fair Use), your actual damages might be only $2,500 or less. It won’t make financial sense to file an infringement suit, as your attorney fees and legal costs will dwarf your actual damages.

In the very rare circumstances where a US-based infringer prominently exploits an unlicensed photograph commercially, like in a world-wide advertising campaign (say for a VISA card promotion) or on product packaging (like Campbell Soup cans), actual damages + disgorgement of profits could be in the millions of dollars. In this scenario, a timely registered copyright may not necessarily help the photographer, as actual damages could likely be substantially much larger than the maximum statutory damages.

Also Important: Any photographer who registers his/her images BEFORE publication OR within five-years of FIRST-publication, is granted PRESUMPTIVE PROOF (i.e., “prima facie evidence”) that they have a valid copyright, and the facts stated in their copyright registration application will be deemed valid to a US federal judge (unless disproved by the defendant infringer). See 17 USC § 410(c): Registration of claim and issuance of certificate AND 17 USC 506(e): False Representation [Criminal Offense]). It’s NOT about having the RAW image that necessarily proves your copyright authorship, as your client and licensees could also have access to your RAW files. The federal court really wants to see your Certificate as your proof of copyright authorship & ownership.

Without having a registered copyright, an international photographer will have to provide the federal judge with sufficient evidence to prove that s/he has a valid copyright before proceeding to trial.

US and international photographers who “timely” register their images (i.e., the photograph was registered BEFORE the infringement began or WITHIN three-calendar months of FIRST-publication) provide their US litigation attorney with LEVERAGE to push infringers to settle out of court (assuming the use is not within the scope of Fair Use). If the US infringer doesn’t settle and the matter proceeds to trial where the plaintiff photographer prevails, the timely registered copyright can subject the infringer to statutory money damages from $750 to $30,000 and up to $150,000 for willful infringement PLUS recoupment of photographer’s attorney fees AND legal costs (at the court’s discretion). See 17 USC §§ 504(c) & 505.

To mitigate their financial exposure, most ALL copyright infringers will want to quickly settle out of court and put their infringing matter behind them when going up against a plaintiff photographer who has timely registered his/her copyrights.

So, you’re technically correct that a Belgium entity can file copyright infringement action in a US federal court WITHOUT registering its copyright claim. But practically speaking, and the point I wanted to stress, it’ll likely be too expensive for the Belgium entity to pursue the infringer, as its trial expense of attorney fees and legal costs will likely exceed any actual money damages it receives. The Belgium party’s best plan might be to have a US attorney send a demand letter, and hope the US infringer gets scared and settles quickly.

Of interest, I search the USCO’s Public Catalog database, but didn’t see any works registered under your name. Is that correct? Please tell me if I’m mistaken (maybe you’re registering under a company name).

Keep this in mind: If you ever have to contact a copyright attorney to help you get money damages from an US-based infringer, her first, second, or third question to you will be, “Logan, did you timely register your photo copyright with the US Copyright Office?”

US or international photographers who choose NOT to timely registered their posted photographs, should, at the very least, affix them with a cool-looking watermark branding LOGO, a small copyright symbol, metadata, copyright attribution + URL or social media handle, and/or other “Copyright Management Information” (CMI per the DMCA). If a US-based copyright infringer knowingly removes, changes, or cover-ups any CMI with Photoshop or another image editing software to hide their infringements or to induce further infringements, photographers are eligible to pursue statutory damages from $2,500 to $25,000 + attorney fees + legal costs against the infringer! Good News: This DMCA provision does NOT require the photograph to be timely register to pursue CMI violators! See http://www.photoattorney.com/options-recovering-infringement-damages/

Even if your web images includes anti-right-clicking measures (that’s important!), you should still affix them with some CMI, as it offers lots of legal benefits when pursuing infringers.

If you choose not to timely register your copyrights, at least affix them with robust CMI to retain some statutory damages.

When infringers knowingly remove or change CMI, that action suggests that the copyright infringement was WILLFUL. If you timely registered your copyright, you’ll also be eligible to received statutory damages from $30,000 to $150,000. Your timely copyright registration really, really counts in so many ways!

Whether you live in the US or internationally (it looks like you’re located in Alaska), these links highlight the importance of timely registering your copyright claims with the USCO:

1) In this copyright attorney law firm blog, just replace the word “company” with “photographer” to understand why international photographers need to timely register their copyrights with the USCO: http://donahue.com/resources/publications/copyrights-registered-u-s/

2) Watch the first 20-seconds of this video from Joshua Kaufman, a Washington, DC senior copyright litigator: https://youtu.be/cBOKkrleY3Y

Logan Cressler wrote, “My guess is you are some kind of copyright attorney.”

I’m not an attorney. Through the years, I’ve had my images repeatedly infringed and had to quickly learn about US copyright law (Title 17 USC) and why timely registering my copyrights is critical to enforce my creative rights. I’ve timely registered virtually all my photographs and videos during the last 10+ years. In 2012, a billion dollar publishing media giant infringed a number of my photographs. With my timely registered copyrights and assistance from a copyright litigator, I settled out of court, receiving a very large cash settlement. I’m real proof that, along with affixing CMI, timely registering our copyrights is the best insurance plan to protect our photographs and videos from copyright infringers.

Jonathan Brady's picture

for the first and only time, I was truly hoping that the lead-in image was from unsplash.

Jack Alexander's picture

Haha! Sorry to disappoint!

Logan Cressler's picture

Also, not sure "A photographer has landed himself in legal trouble after using a photo from free licensing site Unsplash." is accurate. After checking his site, there is no mention of photography at all, it is a commercial site for his horse business. Way more accurate to say "a consumer" or "a commercial user."

Marcus Joyce's picture

Maybe he's an amateur photographer at the weekend?

Oliver Ottley's picture

For the person being accused of the infringement, if they just pull the image from their site doesn’t that make the claim null and void? Or is it not that simple? Confused on why they won’t just stop using the image?

More comments