The growth of sites such as Unsplash, Pexels, and Pixabay have so revolutionized the stock photography landscape that giants like Getty Images, which owns Unsplash, and Canva (Pixabay and Pexels) are now major players. It all seems most attractive. A no-cost registration gives the travel professional millions of images to use on their website, Facebook, Instagram, and other platforms without laying out any money at all. It is the best of all worlds for the travel marketer.
Or is it?
We are not in this column providing legal advice, but it is worthwhile using the services of an attorney if any of the following causes you any concern. The law is far from crystal clear, especially in an age where creators intentionally “share” their creations knowing others will share in turn. For now, however, we will stick to the use of “free” stock image sites.
The Unsplash licensing agreement puts it this way, and the other services have very similar terms and conditions:
“Unsplash grants you an irrevocable, nonexclusive, worldwide copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash.”
The Unsplash license goes on to indicate the photos can be used for most commercial, personal and editorial use without permission. About the only restriction is that photography from such services cannot be sold or used to create a competing service.
However, there are circumstances where the licenses may come into conflict with reality. Here are two instances where the greatest risk may reside:
- What if the photograph was uploaded by someone other than the actual copyright holder? It is likely you can point to the photograph being on the “free” site and the terms of their licensing agreement, but that would likely not relieve you of your infringement against the true copyright holder. It would likely provide you with a deeper pocket co-defendant. This is a “better than not” scenario, certainly not perfect, but better than taking the photography from Google images. Many of the Creative Commons images from Wikimedia and Flicker bother me for this reason.
- What if the photographer did not have a model release and a person in the photograph never agreed to the use of their likeness in the photo or displays a logo or personal property? Unsplash covers the topic here, essentially disclaiming their responsibility: https://help.unsplash.com/en/articles/2612329-releases-and-trademark, and the answer is far from comforting. Using a recognizable person in a photograph is perhaps the most dangerous avenue to take. Consider using only silhouette images or images where the face is not visible, taken from the back of the model. Likewise, remove any logos or trademarks from the photo with image editing software.
The ‘free” sites do not collect model or trademark releases, they trust the photographer. Avoid this scenario! The best protection is to use photography sourced from other than “free” sites such as Shutterstock or Istock. If you use photography from Canva, and TRO does but only for the “Free Canva Templates” we offer, be sure to avoid photos where any person, property, or trademark in the photograph is “recognizable” meaning they could be identified from the photo. Note, too, that while you can use most photographs on the free sites for commercial purposes, you cannot do so with photography they mark as “Editorial Use Only.”
Remember there are companies and law firms which troll copyright violations. Steer away from any photography from Google or Facebook and stay with stock photography sites that provide the best protection when the photography is used in compliance with their licensing provisions.
Here is one of the better articles on the topic. https://friendlystock.com/avoid-get-sued-using-free-stock-photos/
Here is a good article on the perils of using “free” stock photography: https://fstoppers.com/legal/photographer-legal-battle-over-unsplash-image-after-user-uploaded-image-photo-390211
Here is a recent TRO webinar on the topic where our advertiser demonstrates a way to protect yourself and your agency: https://www.travelresearchonline.com/members/resources/webinars/flash/Gore%20International%20Law/webinar20240206.html
