Zack Arias Talks Unsplash, and Some Serious Issues With the Site

[unfocused]

I also hope they clean up the liability issues they've created. It's not their fault that a majority of people that are submitting images are unaware or don't think it's a big deal to get releases, but I think it's Unsplash's responsibility to educate in that regard.

As far as I am aware, getting releases is the responsibility of the person using the photograph for commercial use , not the photographer and applies to commercial use not general web posting. Or did I misunderstand your point?

It's not that simple.

The issue is appropriation and it means that no one can use your likeness for commercial purposes without your permission. It also applies to products that are identifiable -- for example a McDonald's logo.

Contrary to what many misinformed people think, it is not a privacy issue. If you are in a public place, you do not have a right to privacy. (I am speaking only of U.S. law by the way.)

But, you have a right not to have your image appropriated by someone else for profit. And, profit can be very broadly defined. For example, a photographer who posts to Unsplash in the hopes of securing commercial work is profiting from the individual's likeness.

Everyone along the chain has potential liability. The photographer, the provider (in this case Unsplash) and the end user. To avoid liability, the photographer would have to be able to prove that they informed the end user that they did not have a model release. Uploading an image to a website like Unsplash and then letting the world download it would not relieve the photographer of liability because he or she had a reasonable expectation that the photograph was going to be used for commercial purposes. So, yes, the photographer could easily be held liable.

To pile on a bit, by custom and practice, photographers are generally expected to secure a model release from their subjects if they are going to offer the picture up for commercial use. An end user could very easily argue that the images on Unsplash are marketed as free to use with no restrictions and that it was the responsibility of the person uploading the image to secure the necessary rights to the image before uploading it. In fact, most reputable stock photo sites specifically require the photographer to have a release. I would not be surprised if Unsplash, after this dust up, inserts language into their user agreement that states that by uploading a picture you are certifying that you have secured all necessary releases. (UPDATE: I just checked their website and they have language that definitely leaves the photographer holding the bag. I will follow up with another post)

I'm not going to extend this post any longer than necessary, but will state that my above comments only apply to images used for commercial purposes. Editorial and artistic uses have different standards.

 

[Mikehit]

To avoid liability, the photographer would have to be able to prove that they informed the end user that they did not have a model release. Uploading an image to a website like Unsplash and then letting the world download it would not relieve the photographer of liability because he or she had a reasonable expectation that the photograph was going to be used for commercial purposes. So, yes, the photographer could easily be held liable.

Are you posing a worst case - in other words the 'precautionary principle' - or has this been actually demonstrated in court in the US?

To pile on a bit, by custom and practice, photographers are generally expected to secure a model release from their subjects if they are going to offer the picture up for commercial use.

Are people uploading to Upsplash to make money? It does not seem like it. As far as I can tell the images are offered on free licence and the user does what it what they will

An end user could very easily argue that the images on Unsplash are marketed as free to use with no restrictions and that it was the responsibility of the person uploading the image to secure the necessary rights to the image before uploading it.

In fact, most reputable stock photo sites specifically require the photographer to have a release. I would not be surprised if Unsplash, after this dust up, inserts language into their user agreement that states that by uploading a picture you are certifying that you have secured all necessary releases.

Even with stock photography, the agency asks for a model release not because the photographer has to have one but the purchaser will not buy one if they do not have a release because the buyer knows that they have the liability.
My point is that it is not the photographer who needs educating but the end user - if Upsplash ever monetises the images they need to have in thei T&C a statement that it is the responsibility of the end user.

In fact, most reputable stock photo sites specifically require the photographer to have a release. I would not be surprised if Unsplash, after this dust up, inserts language into their user agreement that states that by uploading a picture you are certifying that you have secured all necessary releases.
To do otherwise would potentially criminalise thousands of contributors who loaded images before they commercialised it.

 

[unfocused]

Further clarification. It just gets worse. I apologize for not checking out the Unsplash user agreement before posting previously. Now that I have, it confirms all of my warnings.

[quote author=Unsplash] (Emphasis added)
...You are solely responsible for your User Content and any consequences that occur because you’ve uploaded or posted the User Content on the Service. Each time you upload or post publish User Content, you represent and warrant to us that:

You are the creator and owner of the User Content or have all necessary rights from other people or companies to use, and permit other users to use, your User Content on the Service as envisioned in this Section 6; and
Your User Content (including as used by you, us, or other users of the Service) does not and will not infringe or misappropriate any third party right, including copyright and other intellectual property rights, privacy rights, rights of publicity, or moral rights, or slander, defame, or libel anyone. In other words, your User Content must be your original work and you must have the permission of any third parties that have rights in the User Content before you upload or post the User Content to the Service.

...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. [/quote]

So, to summarize.

It's pretty clear that the people at Unsplash know exactly what they are doing and have devised a user agreement that leaves photographers with all the liability.

I'm not a big fan of Getty, due to their very aggressive tactics, but it is an interesting comparison:

Getty's FAQ on releases: https://contributors.gettyimages.com/article_public.aspx?article_id=3069. To summarize, they make it very clear you must have releases and provide a number of sources for acceptable releases and guidelines. They provide downloadable releases in multiple languages for multiple countries.

 

[Mt Spokane Photography]

It's pretty clear that the people at Unsplash know exactly what they are doing and have devised a user agreement that leaves photographers with all the liability.

I'm not a big fan of Getty, due to their very aggressive tactics, but it is an interesting comparison:

Getty's FAQ on releases: https://contributors.gettyimages.com/article_public.aspx?article_id=3069. To summarize, they make it very clear you must have releases and provide a number of sources for acceptable releases and guidelines. They provide downloadable releases in multiple languages for multiple countries.

I disagree, they advertise that the images are free and unemcumbered. only in the fine print do they disallow responsibility. I think that its not enforcable, its just a matter of who has the best attorney.

 

[unfocused]

It's pretty clear that the people at Unsplash know exactly what they are doing and have devised a user agreement that leaves photographers with all the liability.

I disagree, they advertise that the images are free and unemcumbered. only in the fine print do they disallow responsibility. I think that its not enforcable, its just a matter of who has the best attorney.

It is a user agreement. Once you upload an image to their site you have agreed to their terms. Being stupid and failing to read the terms of an agreement isn’t a defense.

 

[LDS]

I'm looking at the Top 100 free apps on the Google Play Store, I can't find one that isn't monetizing somehow, it was just a quick look.

Just you need to use shady ways like pushing ads to people, selling the data you capture, in-app purchases, etc.

Maybe you can do it with photos too - insert an add, track who see and use the photo and sell the data... just, it works only if you can reach enough people - it's not a business model for everyone.

 

[LDS]

You can't see the value in it, others can. Ego and personal well-being are a massive motivation for some so I would ask 'why does reward have to be financial?'

That's the human weaknesses some big companies exploit to reap the benefits of "sharing". Reward doesn't have to be financial, but you still need money to live, and money to invest in your business. Not everybody has other sources of revenues to subsidize his or her free products. And you can't really compete with "free products". Only the big orchestrators of these markets reap the real benefits.

Do programmers have the same sense of indignation when they see people uploading Android apps to Google store for free?

It started well before there were stores. Many small software houses were thrown out of the market when competing free applications were made available.

 

[Mikehit]

Further clarification. It just gets worse. I apologize for not checking out the Unsplash user agreement before posting previously. Now that I have, it confirms all of my warnings.

[quote author=Unsplash] (Emphasis added)
...You are solely responsible for your User Content and any consequences that occur because you’ve uploaded or posted the User Content on the Service. Each time you upload or post publish User Content, you represent and warrant to us that:

You are the creator and owner of the User Content or have all necessary rights from other people or companies to use, and permit other users to use, your User Content on the Service as envisioned in this Section 6; and
Your User Content (including as used by you, us, or other users of the Service) does not and will not infringe or misappropriate any third party right, including copyright and other intellectual property rights, privacy rights, rights of publicity, or moral rights, or slander, defame, or libel anyone. In other words, your User Content must be your original work and you must have the permission of any third parties that have rights in the User Content before you upload or post the User Content to the Service.

...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.

So, to summarize.

It's pretty clear that the people at Unsplash know exactly what they are doing and have devised a user agreement that leaves photographers with all the liability.

I'm not a big fan of Getty, due to their very aggressive tactics, but it is an interesting comparison:

Getty's FAQ on releases: https://contributors.gettyimages.com/article_public.aspx?article_id=3069. To summarize, they make it very clear you must have releases and provide a number of sources for acceptable releases and guidelines. They provide downloadable releases in multiple languages for multiple countries.
[/quote]

In a nutshell, they are saying that they are making the assumption that the user has full rights to upload the image and that in doing so the site has a catch-all phrase absolving themselves of any liabilities that arise from doing so. And I think both of those are perfectly reasonable.
What do you find objectionable about that?

But that is quite different to your statement about uploading images with no model release in place.
Getty is different - they are stock site which Upsplash are not. Getty are not insisting on model releases to cover themselves, or the photographer: they are insisting on model releases because they will not sell images without one. The end user (magazine publication for example) needs the model release and it will be nigh-on impossible to get a release days, weeks or months after the image was taken assuming they can identify the model in the first place! So they put the onus on the photographer not for reasons of legality, but for reasons of expedience and financial viability - basically they are saying 'we need a model release so if you want out money send us the model release'.

If the Unsplash change the terms such that it changes the very nature of the site (free repository to full-blown stock site for example) they risk negating all terms of the user agreement for anyone who had loaded images before that change.

 

[LDS]

In a nutshell, they are saying that they are making the assumption that the user has full rights to upload the image and that in doing so the site has a catch-all phrase absolving themselves of any liabilities that arise from doing so. And I think both of those are perfectly reasonable.

AFAIK, they exploit the so-called DCMA "User Generated Content" loophole - basically the "platform" is not liable if the "users" upload copyrighted contents. It's only bound to remove them following a valid takedown notice - which requires one for each single violation. While uploads can be easily usually made in batches with no controls.

See https://www.law.cornell.edu/uscode/text/17/512
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act

That means that the burden of finding separately each copyright violation is on the copyright holder. With "platforms" like YouTube or Unsplash, it can easily become a whack-a-mole game. You ask for a video of photo to be removed, it gets uploaded intermediately after by a different "user". It's clear that with very large "platforms" is not going to work.

This platforms make money this way - they have really no incentive to vet uploaded contents before they are displayed, they still bring in traffic and thereby money. They'll remove them only when forced to.

There are similar laws which also apply to unlawful contents - have you ever seen YouTube, Facebook or Twitter sued for hosting a terrorists' video?

Is reasonable? That's debatable - but that's what the US (and often other countries ones) law says.

That's different from platform that contract with authors the delivery of their works - be them Getty or Spotify - in this case they are liable. In some instances, "ignorance" is not a valid reason to not comply with the law.

 

[unfocused]

...Getty is different - they are stock site which Upsplash are not.

Yes, they are. iStock by Getty and Unsplash are both stock photo sites. The only difference is that iStock charges for use of the photos and pays the contributors. Unsplash says their stock photos are "gifted" by the photographers.

Frankly, I'm tired of this conversation. Craig (CR Guy), Zach Arias, Carolyn Wright and I have all explained the risks of uploading images to Unsplash without understanding the law regarding model releases. Unslpash has written a very clever user agreement that leaves the photographer with all the liability. If people refuse to accept the facts, there is nothing more we can do.

I do know quite a few good attorneys, so when you get yourself sued, I will be happy to give you a referral.