I watched a video from Atlanta-based commercial photographer and OneLight wizard Zack Arias last night. I hadn’t planned to watch it all as I was headed to bed, but I found it very interesting. So, I ended up watching the whole thing and going to sleep far too late. The video covers Zack’s thoughts on Unsplash, and it makes Zack’s position quite clear. He’s not happy. Zack had the chance to talk with Unsplash founder, Mikael Cho to voice some of his concerns. He feels betrayed, and I can understand where he’s coming from. In the hour-long conversation, Zack raises some fantastic points, on which some I completely agree, especially releases. There are definitely wrinkles that need to be ironed out with this type of platform. Overall, though I don’t agree with Zack’s position on how it will affect the industry as a whole, long-term.
In the photography world, there are a small number of photographers I truly look up to. People whose work, worth ethic and general philosophy I’ve followed for years. And it is a very small list. Zack Arias is one of those photographers. So, I’ve probably given his thoughts more consideration on this matter than I would some random photographer on Facebook. And there are three main points.
Part 1 – Ruining Photography
The first point, to me, is quite simple. Zack sees sites like Unsplash as not only a knife in the chest to himself and the entire photography industry. And while I do get where he’s coming from, this isn’t the first time we’ve seen this. The same thing happened a few years ago when “microstock photography” sites like iStockPhoto popped up, offering unlimited royalty free image usage for only a dollar or two. Back then I heard many of the same exact arguments. “It’s going to ruin the industry!”, and sure, it might have changed the face of stock photography forever, but photography as a whole still lives on just fine. People were still being commissioned for photography created specifically for companies, and there were still quite a few photographers making quite a nice living with rights managed stock. Especially after certain high profile photography debacles. Does anybody remember the time that both Dell and Gateway sent the same girl back to school at the same time?
This reaffirmed the decision for many companies to avoid stock photography completely and work directly with photographers to create work just for them. Especially for ad campaigns. And I don’t think Unsplash and its ilk are really any different to what iStockPhoto was 15 years ago. Sure, “Free” might give some of the stock libraries a run for their money, but I don’t think it’s going to harm individual photographers dealing directly with clients the way that Zack does. Of course, I may be wrong, and only time will really tell, but I don’t think it’s going to be as big an issue in this instance. A number of photographers are doing rather well on Unsplash. We’ve featured one here on DIYP recently, and our own JP Danko responded to it with a post of his own. In JP’s post, he including another video of Zack’s, in which he raised the concerns made in point 2. And, of course, Unsplash isn’t the only platform one might use to find potential clients. Others do just fine on Instagram and Facebook, too, where they don’t have to give anything away. Even if Facebook’s own employees don’t always understand that. I see it this type of platform becoming a lot like YouTube’s free music library. Sure, some people will use it to death and show the world just how unoriginal they are by having the same content as three million other people. Others will want something new and different and are licensing music from large royalty-free libraries with a subscription or per-piece fee. Of course, YouTube’s library is only free to those making content for YouTube’s platform. But there’s plenty of CC Zero music over on SoundCloud, too. Some of those contributing music authors to YouTube’s library or publishing CC Zero on SoundCloud are also being approached for commissioned pieces by clients, too. Again, I saw the same thing happen with the microstock sites. A photographer would upload a set of images, then they’d be occasionally contacted by customers who’d purchased and downloaded those super cheap images. They wanted more images with a consistent style, that tailored more to their brand, which often meant hiring the same photographer. I dabbled in microstock a little when they first started out, and found some of my first clients there, and they paid very well, too. Now, my path is a little different. For my own photography today, stock images (free or otherwise) aren’t competition for me. The photographs I shoot for my own clients (which are mostly private individuals) can’t be found in stock libraries. The images I make are tailored to the client. And if I’m not worried about the “all images on a USB stick for $30” lot, I’m certainly not worried about Unsplash. Undoubtedly, though, it will make the lives of some individuals harder. Some people will definitely suffer, but in the grander scheme of “photography”, I don’t think it’ll have that big of an impact on earning potential for the majority. But as with any big change in any industry, a business must learn to adapt or die (Hi, Kodak!).
Part 2 – A legal nightmare
This is the big one, and this is where I completely agree with Zack’s thoughts. Essentially, the argument is that Unsplash is granting an image license to its users that it simply does not have the permission to grant. Specifically, a license that grants commercial use. Technically, though, acting basically as agents on behalf of the photographer, they kinda do have the right to grant the license for the image use. The problem, however, lies in the fact that those using the images may also need model releases, property releases and trademark releases. These are things of which neither the contributing photographer nor the downloader of photographs is informed. Zack mentions in the video that he created a fake campaign, and contacted several Unsplash photographers requesting model releases in order to use the images. None of the photographers who’d created the images had one. Some didn’t even know what one was or how to find one (here’s a hint, try Google). When even the photographers contributing the images don’t know what a release is, how can freelance designers be expected to? This can land them in all kinds of hot water if a subject of a photograph doesn’t like where the image ends up. They could pursue the company who published the final piece, as well as the designer who created it, and the photographer who submitted the image to Unsplash in the first place. Not to mention Unsplash as the facilitator of the image’s distribution. And it likely wouldn’t matter what their terms of service says, as the person in the photograph asserting their Right of Publicity hasn’t agreed to it. This was covered much more thoroughly over in JP’s post, along with Zack’s first video, so I suggest you go and check that out. But it’s definitely a very valid concern for both the platform itself, its users, and any companies whose employees or freelancers use content obtained through Unsplash. Another potential issue opens up for Unsplash themselves, even if none of their users ever use the images they download commercially. Unsplash doesn’t currently monetise their platform. But this cannot go on forever. At some point, they’re going to have to in order to survive. The instant that happens, they too could be deeming themselves “commercial use” of images containing people and trademarks without any kind of release forms, potentially opening themselves up to countless suits or a class action. These releases are where the Unsplash model differs from virtually all other (paid) stock websites. Those other sites require the photographer to upload any appropriate releases for the image, or they won’t be available for commercial use, just editorial. At least only editorial for regions that actually require releases. Not all of them do, further adding to the potential legal headaches.
Part 3 – Is it all just a front?
This might be a bit of a cynical point. But in the times we live, one has to consider all of the possibilities. Is Unsplash all just a front to promote Crew? Well, even if it were, one website basically being promotion for another company is not a new concept. It’s been going on since the web first started. There have always been countless free resource websites whose primary reason for existing was to promote a brand. So, on that basis alone, is it really that bad if it is such a site? No, I don’t think so. However, when you consider it along with the first two points then it does appear a little, to use Zack’s word, “Predatory”. It really does. If it was all intentional, to get big on the work of others, give it out for free with no reward or even credit requirement, and legal issues be damned while Crue makes millions of dollars… Then, yeah, it sounds very dodgy indeed. Mikael assures Zack, however, that this is not the case. Unsplash was something they started as a way for themselves to give back to the community, and it simply grew into something they had never even considered. He also conceded that Zack’s points regarding user education on releases and other issues were very valid, and assured him that was this in their plans for the future. One thing’s for certain, the legal aspects of Unsplash are fraught with peril for the site itself, the contributing photographers and those who download and use the images. They really need to step up their game when it comes to educating both photographers and users on exactly how their images can and can’t be used. Unsplash aside, even the photographer may not have the right to use their own image without the subject signing a model release. So it is something that all photographers distributing their images needs to be aware of. Another sure thing is that this type of site and distribution method is going nowhere. No matter how much some of us may hate it, it’s here. Now. And Unsplash isn’t the only website offering such a platform. There’s also Pexels, Pixabay and several more. And those other sites actually are making money directly through advertising. So, they may face potential legal issues even before Unsplash. Whatever your thoughts on the matter, and I’d love to hear what they are in the comments, do be careful when using images from sites like these. And also be careful what you upload as a photographer. You could find yourselves in some very hot water if you’re not careful. Ultimately, I think the interview was a bit of an eye opener for both Zack and Mikael. Both sides raised some great points. And both came away at the end with a lot to think about. I really do hope that Unsplash are able to learn from photographers like Zack, and take things on board that are legitimate concerns. A site like Unsplash is only really going to succeed if they have the support of photographers. And that’s not to say that photographers will revolt against them. But if they work with photographers in order to better the site for those who contribute content, those who use it, and the photography industry in general, they might learn to avoid a few potential headaches completely. Even though Zack and I might not necessarily agree on Unsplash’s overall impact on the future of the photography industry, he’ll still always be one of my favourite photographers. And if you ever plan to turn photography into a business, you have to check out his Creative Live class, Foundations of a Working Photographer. As far as I’m concerned, it’s essential viewing for anybody wishing to call themselves a photographer. You can read some more of Zack’s thoughts about the situation on his website, along with the letter he originally wrote to Mikael. [Lead image by Jean-Pierre Brungs via Unsplash – it seemed appropriate]
