Be careful about the CC0 images

Will Unsplash (soon Getty) go after every using CC0 images for payment?
Unsplash is being acquired by Getty Images
I bring this to your attention, because I have a friend who was sued by Unsplash for using their CC0 images. The case went for for some time. Lawyers banked on this one, but my friend won the case.

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I think they should sue the uploaders and not the consumers
I mean, as far I know the issue is with people who uploaded imagery that wasn’t theirs to start with, and we consumers don’t have a chance to check if it’s really their material or not!

Nonetheless I guess I’ll be going thru a number of sites and remove unsplashed where used, can’t afford a lawyer lol…

It was never a good idea to use Unsplash even before this if you ever took a moment to read the small print. At this point I would stay well away.

These days I basically insist on using commissioned photography or purchasing images from a library like Shutterstock. Apart from anything I am no longer willing to spend unpaid hours scouring the web for free images just to save the small clients a few dollars.

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Interesting thought :slight_smile:

Hope someone’s still following this thread, I’ve a simple question:
Given UnSplash is sorta’ unsafe, what instead?

I’ve a client that wasn’t aware of this issue and now wants to change all the existing and coming images so to not (eventually, maybe, etc) infringe Copyright laws.
He’s willing to pay up to some 5 to 10 bucks each image.

What would you all recommend?

I would suggest Shutterstock, which easily fits within your budget. The trick is to buy a package of say 50 images or whatever you need for the job on a monthly subscription, then immediately switch off the auto renewal, so it becomes a one off bill. If you look around you can also find discount codes of around 20% before you purchase.

The packages basically work out as better value with bigger numbers and you should allow a few spares, because sometimes you download something and the quality isn’t what you might have hoped from draft preview. Generally they are good, but always allow for the occasional fail.

Just make sure you download all you need within the 30 days, because any unused quota is lost. When you look for images make use of the filters on the side to ensure they are not restricted to editorial only, along with any other criteria you need to set.

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I often use Pexels (free) and have used Shutterstock also.

Thanks, free always would be good, however, I have a doubt here:
how is Pexels different from the risk at UnSplash?

As I understand it the whole risk consists in people uploading images truly not theirs and hence making us believe it is Copyright free stuff when it really isn’t.
The Pexels service seems to do the precise same, without further checks wether the images are really copyright free, and giving them away with basically “no restrictions”, just like UnSplash?

Or am I missing something in the whole UnSplash issue?

I often use TinEye reverse image search to check the owners of images and also to find higher res versions of an image a client may have found and a legal source to purchase it. The results are often quite scary!

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I use self made Photos or iStock.

True, but nothing stopping the same thing happened with paid options either, although the risk is extremely minimal. The only real risk free method is your own or client images.

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We had our lawyers check this one out some time ago. Apparently a breach of copyright claim can only succeed on the basis that the breach was with intent to deny the originator of the work royalties or some other exclusive benefit that the originator wanted to specifically reserve. In most cases, the remedy is the person who has allegedly breached copyright will be asked to remove the image when advised by the owner of the work (cease and desist order). Should you ever receive such an order, comply with it immediately - don’t argue about it - just remove the image or video. Failure to do so may well lead to a formal legal action for damages.

The lawyers also provided us with some simple common-sense advice when dealing with image and video sites which I reproduce below:

  1. Download a copy of the site’s terms and conditions and/or the licence. Keep it safe. It may be needed in any future litigation.
  2. Keep a catalogue of all images downloaded from the site, whether the images are used or otherwise. The best option is to use a spreadsheet that includes the original file name, date of download, site from where it was downloaded and the attribute requested by the site. Update the catalog whenever an image is used to show when and where it was used and whether the image was modified before use.
  3. Wherever possible, do not use an image in its original form. Modify it in some way in an image editing application before use and save the modified image as a new file and remove the original EXIF data.
  4. Always attribute the image to the claimed owner by either placing the attribute under each image used, or by having an attribute page in your website that can be easily accessed via a link in the footer of site pages. When an image is used in publications, the attribute should appear in the vicinity of the image.
  5. Try and avoid using images of identifiable people or images that contain trademarks that could suggest some form of endorsement from the trademark owners. Such images may be the subject of additional caveats that are not covered by the website terms and conditions/licence (an example would be a model release agreement signed by the person depicted in the image)

In the event that you do get a cease and desist notice, comply with it and offer an explanation to the claimant that you used the image in good faith and that that the image was downloaded from a publicly accessible stock photo site that granted you permission to use the image. Enclose a copy of the site’s terms and conditions/licence along with the details from your catalog. This will allow the owner of the work to pursue any further claim with the website concerned.

If you follow this guidance, you will stay out of trouble. Although the claimant may, though his/her agent, continue to push you for some form of payment to settle the dispute, resist it at all cost. Some of the claims made are bogus and are little more than scams. So, leave it for the claimant to instigate legal proceedings. It is highly unlikely they will do so, but if they do, just present your evidence to the court.

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This was really some good information, thank you very much posting it for us. :smile:

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How do we know Pexels is not going to do the same?

It has to be remembered that these platforms do not own the images - they allow users to create accounts and upload images. In the process, the account holders are effectively giving non-exclusive rights to the platform to offer the images under any licence terms that the account holder wants. Now, if someone opens an account and uploads work that they do not own, a legal problem is created and it’s really up to the copyright owner to take up the issue with the platform. Upon being advised of a breach of copyright, the platform will, ordinarily, delete the image from the app to prevent any further downloads.

In the interim, many people may have downloaded the image and used it commercially. If that is discovered by the real owner of the work, they can issue a cease and desist notice, which you are legally obliged to act on if you have used the image under a licence issued by the platform. However, if you paid a licence fee to the platform, you are eligible to seek the return of your licence fee from the platform. If the image is still being offered on the platform, you may continue using the image under the terms of the licence the platform is still offering. This is why it is always important to keep a copy of the licence and details of when you downloaded the image.

There are some exceptions to theses general rules. If the legal owner of the work DID upload the work to the platform, but simply decided to cancel their account, you can still legally use the image under the original licence. This is because you cannot revoke or change the terms of a licence retrospectively if it was granted with the copyright owners consent in the first place - whether free or paid for. So, the advice is the same - keep records and licence copies. If you do this, no one will be able to accuse you of breaching copyright.

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On numerous occasions I’ve caught out companies that just happened to use my images for their magazine covers, product packaging or billboards. There have also been online infringements and don’t kid yourselves that those don’t count. They all claimed it was just an innocent mistake and wasn’t intended. I got paid.

Shoot your own images or at the very least license them from reliable sources with legal indemnification. If clients supply you with images, have them indemnify you in writing and confirm they hold usage rights for the intended purpose.

Shutterstock enhanced licenses cover you up to $250,000. Why that figure? No doubt because images registered with the US copyright office have statutory compensation up to that sum. Standard licences only cover you up to $10,000.

Here is an example of a claim.

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I would only ever use my own material. Photos (with model release, so follow all photographer rules), text (no copy / paste). Draw icons, graphics, your own route sketches, all graphic elements yourself. It gets more difficult with fonts:
Only own purchased with permission to host.

No CC Adobefonts (have to be paid by the customer (!) By subscription lately) Web + Print ". So which subscription should customers take out for hosting Adobe Fonts?

Customers should take out a single application subscription for “only” € 23.79 per month.
The photo subscription (Photoshop and Lightroom) for 11.89 € is not enough according to the support.

Later inquiries whether an InCopy subscription for 5.94 € would be sufficient, the Ado support answered in June 2020 with “yes”.

So iron :slight_smile: rule design everything yourself …

Any thoughts on Unsplash+ ?

That’s interesting @pumpkin, looks like they are providing a reasonable solution. A couple of things to note on the license is its one seat. So if you work in a team or colab environment, that’s something to consider. Also you can’t use the images in digital templates, so if you’re reselling digital assets that would be excluded too.

One big benefit I see (besides legal) is that you will get more diverse images and frequent new ones added to the pool.

Currently Unsplash offer a free license:

License

Unsplash photos are made to be used freely. Our license reflects that.

  • All photos can be downloaded and used for free
  • Commercial and non-commercial purposes
  • No permission needed (though attribution is appreciated!)

This may change at at any time, but equally the Unsplash+ license could change at any time, so I’m not convinced that Unsplash+ provides a watertight and risk free solution.