How To Avoid A Lawsuit When Using Free Stock Photos

How To Avoid A Lawsuit When Using Free Stock Photos
May 3, 2018 George Floros
In Design Tools
Disclaimer: The following article is meant to help you avoid unpleasant situations when using free photos. But it is not intended to be legal advice so please do not take it as such. I recommend consulting an attorney with any questions.

I think you’ll agree with me when I say:

It’s REALLY important to avoid legal problems when using images on your website or any other of your projects.

With sites like Unsplash, Pexels, and Pixabay around, it is today easier than ever to find free stock photos…

But, is it really as safe as you think it is to use those beautiful free assets?

Well, as it turns out, there are a few dangers you need to be aware of.

The good news is that it doesn’t take a lot of practice to learn how to identify those dangers and after you do it once or twice, it should become a quick and easy process for you to find photos that can be used without worry.

The problem with free stock photos in plain English

What most people think when downloading a free photo is that the only entity with rights to that photo is the photographer who took it.

And it is true that when a photographer uploads a photo to a free stock site like Unsplash or Pixabay, she or he knowingly forfeits all rights to the photo.

So with the photographer’s rights out of the way, there is nothing to worry about, right?

WRONG.

Let’s say that a photo is released on Unsplash, arguably the largest site in this space.

Now let’s have a look at the Unsplash motto:
Download free (do whatever you want) high-resolution photos.

Do whatever you want” as in “use photos for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash.

Just by looking at that bit of the Unsplash license, one can be led to think that any image on Unsplash can be used for commercial purposes.

If you think that too, you are in dangerous waters!

Why? Because…

A photographer cannot release rights she or he doesn’t own

There are several rights that may exist in a photo that the photographer doesn’t necessarily own and therefore cannot release.

Examples of such rights:

  • Model rights
  • Property rights
  • Trademark
  • Copyright

In order for a photographer to allow you to use a photo commercially, he or she needs to obtain a legal document known as a “release” from every rights holder in the photo.

For example, a model release has to be obtained if there is an identifiable person in the photo. Like so:

Photo with identifiable person from Kaboompics

This photo from Kaboompics features an easily identifiable person. It is safe to use commercially because a model release has been collected by Kaboompics.

You may be shocked to know that sites like Unsplash or Pexels or Pixabay or StockSnap, do NOT collect releases. They trust photographers to only upload photos for which they have obtained the necessary releases but they do not validate the fact.

To be fair, doing so would probably be unsustainable for them from a financial standpoint.

However, there are some sites out there that collect releases. Kaboompics is one of them (according to their own statement) but, as you would expect, their image library isn’t as broad.

Without any further ado, let’s have a look at how you can stay on the safe side.

The 5 questions you need to answer before downloading and using free stock photos

Yes, there are only five.

  1. Is the license current?
  2. Is your use commercial?
  3. If so, are releases needed and have they been collected?
  4. Are there any copyright issues?
  5. Are there items in the photo protected by trademark law?

Now let’s have a closer look at each one:

1. Is the license current?

It is extremely common for free stock photo sites to source or curate images from one another. For example, Pexels states they source images from Pixabay, Gratisography, Little Visuals as well as other sites.

Now, let’s assume a photo is originally uploaded to site A and then somehow ends up in site B.

The photographer changes his mind about offering the photograph for free so he takes it down from site A (where it was originally uploaded). Little does he know the photo was also posted on site B.

Everyone who had downloaded the photo from site A before the photographer took it down can still use it under the license that was valid the moment they downloaded it.

But people who download the photo from site B after the photographer takes it down from site A do NOT have the right to use it.

A scenario like this unfolding is partially why Unsplash now prohibits redistribution of their photos.

What to do

Try to trace the image back to the original source (typically the photographer who took it) to confirm the license. I know it sounds like a lot of work but it is the only way to be 100% sure you are legally using the photo.

For example, I found this one on Pexels:

Typewriter - Pexels

As you can see, this image was added to Pexels by RawPixel.com. I could go straight to RawPixel to confirm the license but I decided to do a Google search for the image first:

Google image search for the above image

What I found was that same image was also posted on Freephotos.cc, Unsplash, and Pixabay. The good news, in this case, is that ALL of those (including Pexels) pointed back to RawPixel.

I took that as a strong indication that RawPixel is the original source.

So I visited their site to confirm the image was still there and then look at the license.

As it turns out, not only is it there but they have a model and property release on file for it which makes the image perfectly safe to use commercially:

Rawpixel - Typewriter

You can see for yourself here.

Now if I had gone back to RawPixel and the image wasn’t there, that would be a huge red flag.

But if everything looks legit when YOU do this, you can proceed to the next step and ask yourself the second question.

2. Is your use commercial?

NO: you generally do not have to worry about model and property releases.

YES: you need to make absolutely sure the needed releases (if any) have been collected.

How to tell if your use is commercial

It is generally agreed that any activity that sells or promotes, a product, a service, a website, an idea or a concept for-profit falls right into this category. But with that being said, there is no clear definition of “commercial use”. It can get confusing at times.

If you are not sure, you should consult an attorney.

Or you could just assume your use is commercial (as that is more often the case), steer clear of using the photo you are looking at (that you’re not sure about) and just carry on to find one that can clearly be used commercially.

If you have determined your use is commercial, the time has come to move to the next question:

3. Are releases needed and have they been collected?

As already mentioned, you do not need to worry about model and property releases if your use is editorial.

But if your use is commercial, you need to be certain that the photographer has collected all the necessary releases. If you do not see any other way to make sure of that, contact whoever took the photo and wait for their reply.

Most lawsuits happen not because of the photograph itself but because of how it was used. A photographer can take a picture and upload it as “free for personal and commercial use” but that does NOT mean it is suitable for the latter.

So here’s what you need to look for in a photo to stay out of trouble…

3.1 Model releases

Is there a clearly identifiable person in the photo? If so, you need to make sure you have their consent to use it and therefore you need a model release.

If there are multiple identifiable people in a photo, then you need model releases for all of them.

If there is a person in the photograph but is not clearly identifiable and is not the main subject of the photo, then you do not need a model release.

BUT…

You need to be VERY careful when determining whether or not a person is “identifiable”.

A person can often be recognized even from the back. A tattoo, a silhouette, a location, a birthmark or a combination of different elements – all can help identify a person.

For example, you would need a model release to use EITHER of the following two photos:

African american man to the left and Asian woman with tattoo to the right

Both persons are identifiable thus model releases need to be collected for either photo to be used commercially.

The woman’s face is only partially cut off from the picture but even if we couldn’t see her face at all, the tattoo on her arm would probably be more than enough for some people to recognize who she is and therefore, a model release is needed.

That is not the case with a photo like this one:

A free photo of a man traveling

An example photo where a model release is not needed.

The person in this photo is hard to identify which makes the above photo safe to use for commercial projects without having to have a model release.

As you can see, there is a good amount of subjectivity in play.

Model releases are also needed for photos of children but in this case, it is a parent or a legal guardian signing the release.

3.2 Property releases

People own so many things: businesses, houses, apartments, cars, works of art, pets, you name it. If a photo is taken on private property or features private property, then a property release is needed to use the photo commercially.

Example of an image featuring a dog that doesn't require a property release

This is a street pup. Thus, a property release is not required.

There are two things that are undeniably true about the above photo:

  1. That is a cute puppy
  2. You do not need to look for a property release because it is a picture of a street dog without an owner

But if this pup was lucky enough to have an owner, the photographer would have to have secured a property release (signed by the puppy’s owner) in order for you to download and use the photo commercially.

The American Society of Media Photographers (ASMP) states that they have never seen a statute or legal case that requires a property release. However, they do recommend photographers getting property releases because the fact is there is legal ground to base a lawsuit on for the lack thereof.

Let’s say you find a free photo of a house that belongs to me and that the photographer who took it never bothered obtaining a property release.

Now you want to use the picture of my house to create flyers that include a slogan that I find offensive.

I happen to see those flyers and I go ahead and sue you because I do not want to be associated with that slogan of yours. I would argue that my reputation has been damaged because many people saw the ad, recognized my house, and thought I was endorsing you. Not to mention you made money by using a picture of my property without permission.

This may sound far-fetched but it can theoretically happen.

Property releases also need to be secured if a photo is taken on privately held property like stadiums, airports, museum interiors, art galleries, shopping malls, movie theaters, aquariums, resorts, amusement parks, zoo parks etc.

The same holds true for spaces hosting events like airshows, fashion shows, concerts, and more.

Hopefully, you’ve sorted property releases by now and it is time for the next question…

4. Are there any copyright issues?

The photo itself has a copyright but photographers give up on that when they upload their image for distribution under CC0. But when deciding on whether you should use any photo, it is important that you look for elements within the photo itself that could lead to copyright infringement.

Woman laying in bed, reading a book

Woman reading a book that cannot be identified

In the above-shown photo, can you tell which book this woman is reading?

The answer is no and that is exactly how it should be. You want to steer clear of free photos with identifiable intellectual property such as books and posters on the wall.

With copyright out of the way, you’re ready to move on to the fifth and last question:

5. Are there items in the photo protected by trademark law?

A trademark is a unique and distinctive mark used to distinguish the products of one party from those of others. Companies take their trademarks very seriously – you should under no circumstances use a free photo that contains trademarked material within it.

Among other things, you can be accused of trying to making it seem like they’re endorsing your product or service.

See to it that branding is removed from any items present in the photo.

Here are a few examples of free photos that could get you into serious trouble if you were to use them commercially:

Example 1
Example 2
Example 3

But company logos aren’t the only trademarks you should be aware of.

Many buildings are protected by trademark law as well. Here are just some of them:

  • The Chrysler Building
  • The NY Stock Exchange
  • The Transamerica Pyramid
  • The Eiffel Tower

What this means is that you can’t download a photo of the Chrysler Building and use it in an advertisement. Again, the main problem is that doing so would make it seem like you are endorsed by the Chrysler Building and that is a big no-no!

Wrapping it all up

Free stock photo sites have taken the Internet by storm. Whether that’s generally a good or a bad thing is debatable in my humble opinion. But that is another story.

We can all agree that they are, indeed, a major convenience for a lot of people.

But free stock photos can just as easily become a major inconvenience and get you into trouble if you do not know what you’re doing.

What about you?

Were you aware of these (potential) issues with free stock photos when it comes to commercial use?

Let me know in the comments below!

Comments (0)

Leave a reply

Your email address will not be published. Required fields are marked *

*