Is Unsplash really a problem for photographers?

Copyright-free images - you have to pay attention to this with Pexels, Unsplash and Co.

Are there any copyright-free images?

In Germany, the Copyright Act (UrhG) regulates which rights the author of a work is entitled to. The author is the creator of the work, for example the photographer who presses the shutter release button. The copyright is inextricably linked with the author. It is not transferable, the author can only allow others to use the work. But he cannot waive all rights to his work in general.

The aim of the law is to ensure that authors receive appropriate remuneration for their creative work. If the agreed remuneration is not appropriate, the author can even ask his contractual partner to provide a supplement. It would be contrary to this if the author could give up his rights completely

One example is the cameraman from “Das Boot”, who subsequently demanded an appropriate increase in his remuneration in court. He was of the opinion that, given the economic success of the film, the agreement on the remuneration was inappropriately low (BGH, judgment of February 20, 2020 - I ZR 176/18). He cannot waive the right to additional payment.

In addition, the author has a personal relationship to his work. An expression of this moral right is that he can take action against a distortion, for example (§ 14 UrhG).

It is therefore wrong to speak of “copyright-free” photos. Photos from Unsplash and Pixabay are also subject to copyright. The question is rather in what form they can be used. This is why they are sometimes also called “license-free” images. However, this is also not entirely correct, since a license is ultimately granted by the author.

How can copyright-free images be used?

The conditions stated on the platforms apply to the use of images. Basically, the platforms regulate:

  1. Free of charge, also for commercial purposes
  2. The author does not need to be named
  3. Edits are allowed

Copyright-free images can therefore be used fairly freely on websites or for other purposes. The conditions are not a problem for normal use, but there are limits. In particular, the Personal rights are not injured by people depicted in photos. One too sale The platforms do not allow images without editing.

Even if the exceptions are rather clear, the use of an image therefore also requires a check if it is a copyright-free image. In addition, as already mentioned, the author can prohibit the use of his work in the event that his interests are impaired.

In the case of "sensitive" content, especially in the political field, users should therefore always consider whether the author would consent to the use or whether the work may have been "distorted". "Die Höhner" successfully took legal action against the use of their songs "If not now, when then" and "Jetzt geht's los" by the NPD (BGH, decision of May 11, 2017 - I ZR 147/16). Caution is therefore advised in the case of provocative topics or if the photographer is politically appropriated.

What are the risks of using copyright-free images?

There are general risks for users when using images from the Internet. This applies first of all with regard to the question of whether the author agreed to "free" use at all. After all, anyone can upload a picture on a platform and claim that it comes from them. The “real” author can then take action against copying or making publicly available contrary to copyright law and demand appropriate remuneration.

A simple research can alleviate this problem somewhat. An easy way to do this is to check the image you want in Google Image Search. If it is used on numerous pages without specifying different information about the author, this suggests that it so far there was no argument in relation to this picture. However, if different authors are named, this should make one suspicious.

Also, not all images are equally free. It depends on which license the author has agreed to. At Creative Commons licenses In many cases, for example, naming is mandatory and commercial use is excluded. Therefore, users should always check carefully which usage is covered by the license.

Difficulty is caused by photos in which people can be seen. The consent of the person depicted is required for the use of such images. In cases of doubt, consent is deemed to have been given if the person depicted has been paid for the photo (Section 22 sentence 2 KunstUrhG). In the case of photos on the Internet, however, the user can neither prove the consent nor the question of remuneration.

The person pictured can therefore, if he did not agree that the photo was uploaded, take action against the use and, if necessary, even initiate criminal proceedings.

What are the consequences of a copyright infringement?

A copyright infringement means: trouble and costs. With a warning, the author can demand that the unauthorized use be stopped. As a rule, he asks the infringer to submit a declaration of cease and desist with criminal penalties. Especially in the commercial sector, it is a disaster if the photo was used for a product or an advertising campaign that has to be pulped as a result.

In addition, the author can claim damages and reimbursement of his legal fees.

A warning in copyright law is ineffective if it does not meet certain formal and content-related requirements. In addition, the legal fees for private individuals are usually capped at around € 150.

Attention: To prematurely issue a cease and desist declaration is reckless. In the worst case, the person issuing the warning can demand a high contractual penalty. Therefore applies

  1. keep Calm
  2. Meet deadlines
  3. Contact a lawyer

When in doubt, it is safer not to use “copyright-free” images. There are now many cheap photo providers who ensure that the author has consented to the specific use and that the people shown have consented to the distribution of the photos. If you still want to use "free" photos, you should always keep an eye on possible risks.

Last updated on October 13, 2020.

About the author

Attorney Dr. Jasper Prigge

Dr. Jasper Prigge is a specialist lawyer for copyright and media law. He advises companies and associations primarily on questions of copyright and IT law. Further focal points are press law and crisis communication.

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