A U.K. government advert, first published in 2019, as part of the “Rethink. Reskill. Reboot.” campaign aimed at those in the arts to retrain to a different industry, has recently resurfaced. The #Fatima advert has sparked anger from those in the arts industry which has been hard hit by COVID. Public outcry prompted an apology from the Secretary of State for Culture, Media and Sport, Oliver Dowden, who said the advert was ‘crass’ and pledged to invest £1.57bn into the arts.
However the advert has sparked additional attention and concern from the photography industry after it was revealed the ballerina featured the advert captioned as #Fatima was unaware of the advert. Sourced from the stock image library Unsplash the situation is a perfect storm of errors that has been predicted by photographers and industry watchers alike for some time.
Created in 2013 by Montreal based entrepreneur Mikael Cho, Unsplash initially offered images uploaded to the platform to users under a Creative Commons zero (CC0) licence, an irrevocable licence which waives as many rights as legally possible. Unsplash changed their licensing details in 2017 so images can no longer be strictly defined as a CC0 but rather a variance of it. This raised red flags at the time as Unsplash decided not to identify the 200, 000 images under the CC0 licence which meant their new licence would be applied to images uploaded irrevocably under different terms and conditions. Despite this, the main criticism the platform has attracted is from offering images of people, brands, locations and trademarks for any use with little to no legal due diligence.
While there are certain exceptions to the following rule (such as a Work For Hire contract); when a photograph is taken, copyright of the image belongs to the creator. However copyright does not mean the photographer is allowed to use the work for any means. In order to use the image commercially, which is defined as use for commercial advantage or monetary compensation, it is the photographer’s responsibility to ensure the work does not infringe on any rights that may appear in the photograph. Should an image include a person, private property, works of art or a trademark/ logo, permission must be sought from them through a legal document known as a release form.
Established image libraries require both photographers to ensure they have such forms required permissions and users to confirm they understand and acknowledge how and where an image may be used and licensed. Unsplash, by comparison, does not conduct any such checks and relies on a minimum wording in their T&Cs to inform all parties responsibility lies with others in the chain. Indeed the platform does not even insist on credit to photographer, otherwise known as asserting moral rights, should an image be used. Instead a ‘Shout out’ notification appears, when an image is downloaded, which can be easily missed or ignored.
The platform attracts end users due to the high quality of free work but has come under criticism from photographers, such as Atlanta based photographer Zack Arias, who accuse the platform of exploiting amateur hobbyists who do not understand the legal rights and obligations of their images. Arias conducted an experiment and reached out to Unsplash photographers requesting copies of release forms; while the results were amusing, they were also shocking in regards to how poorly and incorrectly the forms were returned. While experienced photographers are cynical of the idea that exposure leads to work (*Ed’s note, it does not) some, like Samuel Zeller, claim a successful photographic career based on exposure gained from his work on Unsplash. Unsplash reinforces the idea that platform engagement levels are high by counting instances where photographs are scrolled past as an impression, while other platforms counts impressions as individual image views. Such metrics can inflate image figures and allows Unsplash to notify photographers their work has accrued views that number in the millions in a short space of time. Additionally critics of Unsplash accuse the platform of exploiting photographers, not only in regards to legal naivety, but also by pointing to examples where work is used by international publishing houses and global companies for magazine covers and product launches without any compensation or recognition to the photographers, all of which is legal under the platform T&Cs. Arias also points out that photographers like Zeller are an industry outlier and the exception rather than the norm.
The result of Unsplash’s T&Cs mean that the platform is acting as an agent, granting a licence for image use, for images which often do not have the required permissions. It skirts around this issue with this wording “…you may need the permission of the brand owner of the brand or work of authorship or individual depending…“, but does not require any check boxes nor user agreements to ensure such terms have been read, understood or agreed.
Returning to the image of #Fatima, the original photograph was cropped to exclude a second ballerina in the photo, Tasha Williams, the owner and director of Vibez in Motion dance studio based in Fayetteville near Atlanta, Georgia. Possessing a strong community purpose and motivating young people through dance and the performing arts, the studio was unaware of the image use and are ‘deeply disturbed’ and working with attorneys in regards to the HMG backed advert. The photographer, Krys Alex, is equally shocked of the use only becoming aware of it when the advert started to be criticised on social media and has described the advert as an ‘unforgivable fact’. However looking at Alex’s website, the impressions is she is not an amateur nor hobbyist photographer and as such one must wonder why she offered work on Unsplash without reading the platform T&Cs and why no model or location releases for #Fatima have been forthcoming.
The lack of responsibility shown by all involved has now realised the fears that many have had with Unsplash. It is currently unclear whether Alex has model and location release forms, and their presence is significantly absent from the 2 minute video posted on her social media channels in regards to the issue. Given the reaction by Alex and Vibez in Motion it is clear HMG did not contact them in regards to the release forms, which leaves Unsplash as the middle party who facilitated this sorry tale. It is possible to level accusations of impropriety to Alex, Unsplash and also HMG and in essence all it took was for each party to believe the others were responsible for this situation to happen. It is possible that the aggrieved party of #Fatima (in real life Desiree) and Vibez in Motion may choose legal action against Alex, Unsplash and HMG. What is clear is that free photography is not free of risk and that due diligence is key.
This story is an important lesson learned for anyone, businesses and individuals alike, who potentially use unlicensed photographs or photographs without releases. While it makes business sense to be prudent with costs, this example shows the risks that hiring either amateurs or those who do not have professional standards can bring. This is not the first example, and it is doubtful it will be the last, that going cheap will cost a brand more in the long term in regards to costs and reputation. Equally there is a moral component to the matter; how happy would you be if your face was used in a manner not in accordance to your wishes? Many people outside of the photography industry are unaware of licences, release forms, copyright etc… and it is a professional photographer’s responsibility to bring such matters to your attention. Don’t be #Fatima.
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