What’s wrong with using free photos
By Sharon Lapkin
Is there anything wrong with using free photos on your blog or website?
If you search online for freebies you’ll see there are dozens of options. There are also dozens of advocates recommending free stock photos as a good cost-saving strategy.
After all, why would you pay for photos from stock libraries such as Getty Images, iStock or Shutterstock when you can easily get them for free?
For the sake of transparency let me state here that I earn money as a stock photographer.
I am a contributor to Getty, Alamy and the book cover agency, Arcangel.
If you use stock photos in your work, it’s important to know that there are important differences between commercial stock libraries and the free stock sites. Some of them are easy to live with, but others need careful consideration before you participate.
Quality and access
There are too many free stock photo sites to examine individually, and there are certainly some good photographs available for download.
Access to the images also appears to be good. I signed up, selected and downloaded a high resolution photo in just a few minutes.
So let’s skip quality and access and go to some of the other considerations.
Types of creative commons licences
The free photo sites I’ve visited offer their photos for use under a Creative Commons dedication.
Creative Commons is a global not-for-profit organisation that enables copyright creators to share their work without infringing copyright law. The creator retains copyright of their work, but they provide licences to allow users different types of rights to publish it.
There are six different types of Creative Commons licences, so it’s important not to take the name of the organisation at face value, and investigate what type of Creative Commons licence you’re dealing with.
The six types of Creative Commons licences
1. Attribution – CC BY
This licence allows users to distribute, remix and build upon a work, and create Derivative Works – even for commercial use – provided they credit the original creator/s (and any other nominated parties). This is the most accommodating of the licences in terms of what others can do with the work.
2. Attribution-Share Alike – CC BY-SA
This licence allows users to distribute, remix and build upon the work, and create Derivative Works – even for commercial purposes – as long as they credit the original creator/s (and any other nominated parties) and license any new creations based on the work under the same terms. All new Derivative Works will carry the same licence, so will also allow commercial use.
3. Attribution-No Derivatives – CC BY-NC
This licence allows others to distribute the work, even for commercial purposes, as long as the work is unchanged, and the original creator/s (and any other nominated parties) are credited.
4. Attribution-Non-Commercial – CC BY-NC
This licence lets others distribute, remix and build upon the work, but only if it is for non-commercial purposes and they credit the original creator/s (and any other nominated parties). They don’t have to license their Derivative Works on the same terms.
5. Attribution-Non-Commercial-Share-Alike – CC BY-NC-SA
This licence lets others distribute, remix and build upon the work, but only if it is for non-commercial purposes, they credit the original creator/s (and any other nominated parties) and they license their derivative works under the same terms.
6. Attribution-Non-Commercial-No Derivatives – CC BY-NC-NC
This licence is the most restrictive of the six main licences, allowing redistribution of the work in its current form only. This licence is often called the ‘free advertising’ licence because it allows others to download and share the work as long as they credit the original creator/s (and any other nominated parties), they don’t change the material in any way and they don’t use it commercially.
What you need to know about a CC0 dedication?
Each licence has a set of core conditions that must be complied with when the photo, or other work, is published.
The core condition that applies to all six Creative Commons licences is that the creator of the work is attributed – otherwise known as the ‘Attribution’ condition.
None of these licences, however, apply when the photo is ‘dedicated’ to the public domain. All the free stock photo sites I visited use a CC0 dedication, which enables them to offer the photos free of rights to the fullest extent possible by law.
Following is a copy of a CC0 Public Domain Dedication.
There are a number of important things you need to know about a CC0 licence. Firstly, it is not possible to dedicate a photo to the public domain if it already has copyright and trademark rights over it.
Secondly, remember that copyright is conferred on creators’ work automatically by law. Relinquishing a protection that was granted by law does not sit well in some jurisdictions around the world.
This is why you sometimes see a note added in the Terms and Conditions of free photo sites that states: ‘To the extent possible under law uploaders to this site have waived their copyright and related or neighbouring rights to these photographs.’
Let's get even murkier
Say I take a photograph of my neighbour in her garden. She doesn’t mind at all, and even poses for me under her magnolia tree.
I process the photo and upload it to a free photo site for anybody to use. I don’t bother reading the fine print in the Terms and Conditions because I’m not a details person. I tick all the boxes and sign off on my upload.
The following day I’m excited to see my photo on the free stock photo site released under Creative Commons CC0.
So this is great right?
My photo is high quality and there’s no doubt that I am the photographer.
Actually, it’s not that simple. I overlooked one or two important things. Do you know what they were?
I took a photo of my neighbour and she verbally agreed to my doing that. I didn’t tell her I was going to publish it, and she didn’t sign a model release.
So, in effect, I uploaded a photo without a model release to a free photo site, which accepted it after l skipped over the fine print in their Terms and Conditions.
This is what’s wrong with using free photos.
What the fine print says
Model release requirements differ depending on the free photo stock site. Most will tell you it’s your responsibility to get a signed model release, but don’t want you to forward it to them. Others ask you to send all signed model releases to them.
Generally, they explain that all photos uploaded will be available freely to the public for commercial and non-commercial uses. Further, the person who downloads them may edit, amend or change the photos.
Many free stock sites stress that you cannot use photos of people in any way that is distasteful. This appears to be a condition of use by the free stock photo site because a Creative Commons CC0 licence means the photographer has surrendered all publicity and privacy rights.
You’re also usually informed that you do not need to attribute the photos.
You are required, as a photographer, to ask a person (‘the model’) who you’re photographing to sign a model release if you are selling, or publishing, an image of them. Usually, a model release for a Creative Commons CC0 licence will contain terms such as non-exclusive, perpetual, irrevocable, worldwide and royalty-free.
Who's responsible for copyright infringements?
It should be clear by now that you cannot license or publish a photograph with a recognisable person in it without that person’s explicit consent.
Note that editorial images, used in news stories etc., fall under a different criteria, and are not dealt with in this discussion.
Free photo sites often make a statement in their Terms and Conditions that the photographers are legally responsible for the photos they upload to the library.
They might have a statement such as ‘Please only upload photos to which you own the rights,’ or ‘When you upload a photo you agree that you have the proper releases, ownership and permissions needed.’
They also generally state that the free stock site will not tolerate copyright, trademark or property right infringements, and will not be held responsible if any photographer uploads photos that infringe any of these rights.
Some go even further with an indemnity section in their Terms and Conditions that states ‘You agree to indemnify and hold us harmless from all damages, injuries, liabilities, costs and expenses from any action.’
In addition, an end user who downloads a photo for publishing from a free stock site is also informed, in the fine print, that the site will not be held responsible for any misuse or abuse of the photos. If there are any legal infringements, the site says it is not liable for them.
The free stock photo site sees itself as a go-between, or a service, and it is clear in its fine print that it does not accept responsibility for any legal issues arising from the photos it makes freely available to the public. According to them, the onus falls on the photographer and the end user (the person who downloads and publishes it on their blog or website).
The important thing to note is that some photographers and end users may not understand what these legal responsibilities are. They may upload and download photos in good faith. An end user may skim over the fine print and decide the photographer would have taken care of the legal details. After all, they uploaded the photo. They know what they’re doing right?
Unfortunately, the photographer may not have understood what the legal requirements were. They may not have a proper model release for a neighbour who posed for them under a magnolia tree. They may even have uploaded a photo of a child and overlooked asking the parent to sign a model release. Copyright is a complex business.
There are a lot of assumptions in this three-way relationship, and as an end user you must acquaint yourself with the potential ramifications of what you’re publishing.
Remember if you publish a photo of a person or of private property without signed releases, then it is you who is likely to be sued for damages. You can go after the photographer, sure, but they didn’t publish the photo did they. You did, and this is what’s wrong with using free photos.
Can you eliminate the risk?
You might be thinking that you can eliminate your risk by not downloading any photos that have people or private property in them. This will definitely reduce your risk of infringement, but it won’t eliminate it.
The reason is that even photos of trees on public property can have licence or ownership restrictions governing their use. Remember you cannot overrule an existing copyright licence by putting the photo into the public domain and dedicating it to CC0.
The best thing to do is to contact the photographer, or the free stock site, and ask to see the model or property release. Sometimes there is a link to the photographer and you can leave a message for them. Although, free stock sites often give their contributing photographers the option to opt out of communication with end users.
Even if there are no recognisable people or private property in the photo, it’s good practice to check with the photographer that the image is free of all copyright restrictions.
This right is sometimes waived or transferred by consent in writing by the creator of a work, and this type of clause is often included in employment contracts where the employee is contracted to create intellectual property for an employer.
In the US, moral rights fall under two categories: the right of attribution or paternity, and the right of integrity – where the creator of the work is able to take steps to prevent that might destroy their intent or vision in a work.
The US Copyright Act grants moral rights to creators of visual works, although from the literature l have read it is not often enforced.
Note that in some jurisdictions it is difficult to waive moral rights.
A Creative Commons CC0 licence does not require attribution. The request you see on free stock sites for attribution is simply that – a request.
Do people really get caught for infringing copyright?
Yes they do. All the time.
Many of these cases are settled before they reach court, so you don’t read about them. The chances are if you take enough risks with copyright you will eventually be caught out.
Here’s a list I found doing a random search online. I take no responsibility for its accuracy, but it does clearly demonstrate that you should never take a free photo lightly.