@tami1 @PaulMathews @NJRFTF @whitemonkey
I agree with Paul inasmuch as there is certainly an entire industry centred on photography copyright frauds and trolling and Unsplash is certainly a legitimate company, albeit considered to have a controversial business model in photographic circles. I’ve had my own photographic works downloaded and used without permission on numerous occasions and have successfully had copyright enforced financially via a legitimate copyright claim company (not the one Paul discusses). The (English law/EU law) advice I’ve received is that it is erroneous to make any blanket statement that, if your Unsplash-sourced (or similar source company) image is found to infringe copyright you have nothing to worry about. This may be the case in North American jurisdictions but EU copyright (and privacy) law tends to be much stricter than similar law elsewhere. Unsplash frame their terms within Canadian law. But this certainly does not apply when the photographer or service user resides or contravenes law in the EU. I urge caution when using images, even from reputable websites such as Unsplash, particularly so with reference to EU copyright and privacy legislation.
The Unsplash License does not include the automatic right to use images containing trademarks, logos, or brands, nor images of individuals if they are recognisable, nor images containing any works of art or authorship. As they clearly state:
"If you download photos with any of these depicted in them, you may need the permission of the brand owner of the brand or work of authorship or individual......."
Re. trademarks and branding this is standard copyright advice, albeit something a lot of people may not be aware of. However, there is something here of potentially greater concern. EU legislation is particularly strict about using any EU citizen’s image in any commercial work (and sometimes other settings) without their explicit permission - even if the individual's image is nonderivative or a secondary or minor component of the overall scene (such as in a crowd or in the background). Merely being recognisable is potentially an infringement in any commercially oriented image. I'm given to understand that Unsplash is on very shaky legal ground issuing commercial licences for such images within the EU, unless all recognisable individuals in the image have given written permission for their image to be used, or they have been blurred/pixelated to be unrecognisable. Nevertheless, Unsplash is awash with potentially infringing images with no such permissions yet they freely licence them for commercial use without any further advice. Yet importantly, under EU law, in the event of court proceedings, the end-user is just as legally liable as the company/photolibrary etc is from where they sourced the image.
As you would expect, Unsplash seem well aware of this situation. If you do use such an image, "in good faith" (not a defence in EU law) downloaded from Unsplash and subsequently get sued for copyright infringement, they clearly state they provide no blanket indemnity to service users:
“…….the dispute [between the service user and Unsplash] will be resolved by BINDING ARBITRATION. This means that YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO SUE US………. unless you live in the United Kingdom or the European Union”
In other words, if end users outside the EU/UK are sued for copyright or privacy infringement, by their having agreed to Unsplash's licence terms they have disqualified themselves from suing Unsplash for any damages they incur. Within the EU they are able sue Unsplash for providing what is effectively an illegal licence under EU law.
Further, Unsplash actually admit that they cannot guarantee images uploaded onto their website have been provided by the legal copyright holder (or legal representative). Despite this they still attempt to deny liability if copyright or privacy infringing material is made available by them.
"There is no reasonable way for us to monitor all of the User Content that gets uploaded to or posted on the Service, and 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............When you use the Service, you will be exposed to the User Content of other users, some of which may be.......inaccurate..........WE PROVIDE THE SERVICE...........WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED."
Unsplash are certainly one of the better, more legitimate sources of images, compared with the thieving image scraper sites that pop up for a while and then disappear. But their end users should not assume that US or Canadian copyright and privacy laws apply elsewhere in the world and that they will be immune (or disqualified) from court action; they are equally legally liable with Unsplash if an infringement clashes with EU law.
My advice is to be cautious; firstly, seek confirmation from the photographer that Unsplash has the right to grant licences and, if applicable, ask also about model releases (because Unsplash does not require them) if the image originates in the EU and is intended to be used commercially in the EU.
