Think Twice About Unsplash — You Can Be Sued for “Free” Images Too
Copyright on Images Can Land You in Court
This article does not constitute legal advice. Always conduct your own due diligence.
Something I long feared could happen — has indeed been happening.
Those free images on Pixabay, Unsplash and Pexels may not be quite as free as we thought they were.
And writers are running into legal issues.
The Basics
Back in 2012, when looking for images for my now long defunct but fondly remembered site Oculus Mundi, I was fortunate enough to come across an article by a blogger named Roni, who had found herself in very hot water.
She wanted to spare other bloggers the same painful experience.
Roni is not a plagiarist, or a criminal, or a bad person. She cares about other people’s rights and giving credit where it’s due.
And like so many of you, she was oblivious regarding the laws around copyrighted images. Just as I was until I read her very timely piece, and set about removing every image I had used up until that point.
In 2012 options for photos were much more limited, and I made quite a few shonky looking creations using paint.net, but in an ironic self aware sort of way — at least that was the aim.
How Do They Find You?
Individual creators search for their images online.
There have been some tales of photographers deliberately leaking their work online in hubs where bloggers are known to search for free images, then making money out of the court cases — but these may be urban myths.
And there are platforms developed for the purpose of hunting for images that infringe copyright.
This is a business for some.
“Pixsy…has developed image look-up technology to monitor and pursue copyright infringement on behalf of photographers. Its service incorporates artificial intelligence that has been trained to match an artist’s work with instances on the web. It can also identify alterations including crops, re-colouring and layers added or removed.”
Free Images That Are Not So Free
Previously, I suggested that you could try Pexels, Pixabay and Unsplash for free images — but I added this caveat.
BUT always conduct due diligence before using these or any other images. Be aware that sometimes sites change their TOS, and check every time you use an image from any site, that you can do so lawfully.
And be aware that sometimes photographers will post images on free sites, but later go back and ask for a DCMA to be added.
I had an inkling that some of those pictures might not be being posted by the original creators.
The mere fact that there were images of famous faces on the sites rang some alarm bells.
A copyright free image of Will Smith that costs me nothing to use? Sure, seems legit.
Other Options
My concerns — as noted in my previous article, constitute my reasons for paying for images.
I have trialled both Deposit Photos and Canva, and am currently creating most of my own images using Midjourney, DALL-E and other AI image generators.
Another great option, as the savvy writer and long time freelancer Susie Kearley notes, is to take and use your own photographs.
It Happened To Them — What You Are Risking
In the last few years, concerns have been raised over Unsplash images.
“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.”
And as noted by Susie in her recent article, some Medium users have run into legal problems.
End User Problem
In the end, no matter what the site tells you, it seems we are liable as “end users”. If we are not paying creators for images, or buying them from a reputable site, we need to be absolutely sure that we have the permission of the owner to use it for free.
Let’s not forget what happened to Roni:
“He sent me a takedown notice, which I responded to immediately…The pic was down within minutes…He wanted compensation for the pic. A significant chunk of money that I couldn’t afford…but know that it was a lot of stress, lawyers had to get involved, and I had to pay money that I didn’t have for a use of a photo I didn’t need.”
It Can Happen To You
“Here’s what I learned about image use from Roni’s blog post all those years ago
It Doesn’t Matter — if you meant no harm and made no money, if your site was non commercial, if you named the creator or if you didn’t claim attribution.
It Doesn’t Matter — if the picture is smaller than full sized (thumb nails might be ok, but check the laws in your own country) if you offered a disclaimer, if you added anything — including commentary, or if you embedded the image.
And it Doesn’t Matter — if you take it down instantly. You’re still liable.
Yes, you will have to take the image down instantly or risk “wilful use” which can mean being sued for higher damages.
But you are still liable for damages even if you remove it straight away.
If you did not receive express permission from the creator/owner, or if the images are not legitimately free from copyright in the public domain you can be found liable and have to pay damages.
In Conclusion
Using people’s images without their express permission can get you sued.
But even using images from sites that claim to offer free images comes with its own perils.
So please, please exercise caution when you’re using pictures for your story.
Of course, you might be lucky. Or you might end up like Roni:
“The pic was down within minutes. But that wasn’t going to cut it. He wanted compensation for the pic. A significant chunk of money that I couldn’t afford. I’m not going to go into the details but know that it was a lot of stress, lawyers had to get involved, and I had to pay money that I didn’t have for a use of a photo I didn’t need.”
From now on, I’m staying away from the free image websites.
Be careful out there.
Copyright Alison Tennent 2023, all rights reserved. Scottish by birth, upbringing and bloodline, Australian by citizenship.
Updated from my 2021 article entitled “How a Simple Blogger was Sued Over Her Images”
