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 Insights
Free stock photos can get you arrested!
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 looked 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 potentially get you into serious trouble if you were to use them commercially (if there are no releases on file):

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 (21)

  1. Tony Hays 1 year ago

    Thank you so much for this information. As interesting as this is, I found your page because a “designer” sold me some images that I thought she created until I followed my gut to check them out. Only then did I realize they were not hers. Thankfully, the platform refunded my money, but it reset my business and efforts to ground zero. I’m sure that is better than being sued.

  2. Jo 1 year ago

    Thanks for this info. We were just discussing this issue in one of our groups and people were wanting to know the best way to go about using the pictures on places like Unsplash and Pixabay. I’ll be sure to share this with them.

  3. Mandy 4 months ago

    That is a lot to think about. Makes me want to quit using pictures. Sounds like even some of my own photos could be suspect.

  4. Sue Van Oosterom 4 months ago

    What if I want to paint a picture I found on Pixabay..not exactly but say, use the boat and change the background……if not, what is the whole point of offerring up these free images.

    • Author
      George Floros 4 months ago

      Hello,

      If you just want to paint the photo, then the above doesn’t apply to you. If you want to sell your painting or otherwise use it commercially, then you may want to take a closer look at the photo itself and the license it comes with.

      For example, if there are identifiable people in the photo, then you should make sure there is a model release on file (one for every identifiable person). This also applies to property, trademarks (like a brand logo), some buildings.

      If it is a generic photo of a boat, you should be good to use it commercially anyway (assuming the license allows it, which is most likely the case on Pixabay and similar sites).

  5. Paulina 3 months ago

    Thank you for this article! I have one question, and I hope you can help – can I use Unsplash photos in online ads? (For example Facebook ads). Of course, I’m having in mind all the points you mentioned. “Commercial use” is quite a general term.

    • Author
      George Floros 3 months ago

      Hello Paulina,

      You most certainly can! Using Unsplash photos in online ads constitutes commercial use without a doubt so you will want to carefully select your photos – like discussed in the article. Unsplash has an amazing collection that keeps growing by the day – I’m sure you will find a photo that is both suitable for your needs and safe to use!

      • Paulina 3 months ago

        Thank you!

  6. Stacey 2 months ago

    Are non-profit public educational websites considered commercial?

    • Author
      George Floros 2 months ago

      Hello Stacey,

      That is a good question. Non-profit educational use is distinct from commercial use but commercial use could still occur in a non-profit setting. Maybe you use an image in a calendar you sell as a fundraiser or maybe you happen to use it during another event that could be considered commercial in nature.

      With that being said, I would still be careful when selecting images. There is a huge selection of free resources out there which makes it quite easy to avoid those images that are on “thin ice” when it comes to copyright and trademark law.

  7. Charles Peralo 2 months ago

    Cool article George. Have a question!

    I have an investor who doesn’t want to use pexels, upslash or Creative Commons for images on our site succeed.com. He also doesn’t want to use the federal governments images from groups like NASA that are public domain. He also doesn’t seem willing to support us using articles where we take photos from movies or shows and talk about that as part of a review or commentary. And the list goes on… No trust for images even when people agree to sign a doc giving rights claiming we don’t know for sure who took it.

    I’m looking at this and we aren’t using images on these sites to sell products, are not using them for our actual site and not really using them for much. We just want featured images for articles in our blog to grow. And I have seen countless sites and written for some where they really don’t care. They let me use pixabay, Pexels and more. He’s afraid we will use them and get $150,000 lawsuits just popping up.

    What are your thoughts? Have you ever actually seen lawsuits like that where anyone lost over say $10,000 on a photo? Do you trust pixabay and pexels for blog article photos? Do you trust the ability to take photos from movies or shows and use them as commentary?

    Thank you and look forward to your answer.

    Best,

    Charles

    • Author
      George Floros 2 months ago

      Hi Charles,

      Great domain name you got there! Interesting site, too.

      Most of the images on sites like Pexels, Pixabay, Unsplash, etc, are perfectly safe to use. I wrote this article for those indeed rare cases that they aren’t. Yes, I personally do trust these sites for finding featured images for blog posts – just not blindly. Each image I find goes through a checklist to determine whether it is safe to use or not and how likely it is to get me into trouble.

      It takes some getting used to but it becomes second nature after a while. Frankly, it sounds like you are being careful enough already!

      I myself avoid using images of identifiable people or property unless I cannot find a similar photo with non-identifiable people/property. And if I have to do the former (which I typically avoid), I will make absolutely sure there is a model/property release on file.

      I’m not personally aware of a lawsuit where someone’s lost over $10,000 but I am aware of one lawsuit for $8,000 over a featured image on a blog post. The number of people who read the blog post didn’t matter (it was a low three-digit number and the publisher could obviously prove it).

      Works created by the U.S federal government and any of its agencies (such as NASA) are copyright-free.

      And in regards to using photos from movies/shows as commentary, I would say you are covered by the “Fair Use” doctrine if you are writing a review, criticising, parody the film/show, or writing a caption that makes a parallel with real life, or something in those lines. Note that most film studios release professionally taken screenshots for promotional purposes – perhaps you could use those in some cases.

      Copyright and fair use can be subjective so if you are unsure about how legal (or illegal) your use is, consult an attorney. Especially if you are dealing with a worried investor!

      I hope this helps!

  8. Layton R. Turner 2 months ago

    This is a great article! Question. If you download a photograph that allows free commercial use license, if there is a trademark/copyright issue on the original photo, but you modify it so the logo/word/etc. aren’t identifiable, would that work?

    • Author
      George Floros 2 months ago

      Hello Layton,

      Yes, that would work. For example, if you have a photo of a woman jogging and her shoes have an identifiable logo of a sportswear brand on them, you could use photo editing software to remove the logo from the shoes.

  9. Will 2 months ago

    I’m using images with people shot from behind at a far distance (from Pexels) where you cannot tell who they are at all. It’s possible to tell their hair-style but that’s it… (No tattoos). Is it safe to use images like these in a promo video for commercial purposes?

    • Author
      George Floros 2 months ago

      Hello Will,

      It sounds like the people in the images you are using cannot be identified which means the images are safe to use for commercial purposes. You will also want to make sure there are no identifiable brand logos and other identifiable objects that are copyrighted (books, posters on the wall, etc).

      Last but not least, keep in mind that while you can use the images commercially (say for a promo video), you typically can’t sell or redistribute the images themselves. And there are also restrictions when it comes to using images on physical products for sale (you will have to modify them first).

  10. Domantas 4 weeks ago

    Hello,
    great article!
    I have a question. If I want to download a photo from one of these websites, put my logo on it and:
    1) Use it for IG posts;
    2) Use it for e-commerce shop design.
    Can I do it?
    In other words, can you put your own logo on photos?
    Thank you in advance.

    • Author
      George Floros 4 weeks ago

      Hello,
      Yes, you can typically do that subject to the ToS of each website you are downloading from. Everything mentioned in the article still applies, of course.

  11. Shahridzuan Azali 4 weeks ago

    Hi. Thank you for your article. I’ve been having these questions. Is it okay for me to use text, photos, and design from the sites you mentioned and also Canva for my blog and Pinterest? I need nice photos for my blog and I’m planning to promote my posts on Pinterest. The latter would require me to design poster-like photos using Canva images and fonts. I’m worried about getting sued though. Thank you for your guidance.

    • Author
      George Floros 4 weeks ago

      Hello,
      Generally speaking, it is safe to use images from free stock photo sites (that includes the collection Canva has). However, just like I mentioned in the article, you want to be very careful with photos featuring identifiable people, places, brand logos, etc. No free stock photo site can guarantee the author (the uploader) has the appropriate releases on file so you have to do that instead and do your own diligent research. Or just stay away from photos that are on thin ice or just flat out dangerous to use and choose more generic ones, with non-identifiable people or property.

  12. Bob Murphree 2 days ago

    Good Afternoon. Having been in the advertising and graphic design business since 1995, it doesn’t take long for the many professional photographers to inform you of their rights as well as the rights of each person, logo owners, etc. Since then and most recently, I visited the government copyright website. There is no scarcity of information we all should know. On a photo trip to San Francisco back in 2004, I made sure most street shots that contained people and even notable buildings had to be partially obscured, or in the case of the Transamerica Pyramid, was less than 30% of the entire photo. Enough about me.

    This article generated by George Floros is one of the clearest and most understandable summaries of the intricacies of copyright licensing I have read to date. Thank You

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