The question

A reader of WP and Legal Stuff asks:

“There’s quite a big debate going on at the moment about Unsplash’s new license. See: https://wptavern.com/unsplash-updates-its-license-raises-gpl-compatibility-concerns

It would be great to a get a lawyer’s input on whether the new license is GPL compatible or not. Is it possible for individual photos to be GPL while having a restriction on the collection as a whole?”

The short answer is that the new Unsplash licence imposes a prohibition on a certain kind of use of the licensed images that the GPL would not impose, but it shouldn’t matter because the GPL doesn’t require images bundled in a distributed theme folder to be GPL-licensed and nor should this be required for themes submitted to the WordPress.org theme repository’. There is, however, a potentially important respect in which I suggest the new Unsplash licence needs to be clarified to create greater certainty for the developers of products, like themes, that contain the images as discrete files, so those developers can be confident that the end users of their products obtain the rights they need. If the new Unsplash licence is clarified as I suggest in this article, then I think Unsplash images should be able to be used for themes submitted to the WordPress.org repository.

The rest of this article sets out my reasoning for these conclusions.

The new Unsplash licence

The new licence says this:

“License

All photos published on Unsplash can be used for free. You can use them for commercial and noncommercial purposes. You do not need to ask permission from or provide credit to the photographer or Unsplash, although it is appreciated when possible.

More precisely, Unsplash grants you a nonexclusive copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash. This license does not include the right to compile photos from Unsplash to replicate a similar or competing service.”

Discussion

A number of points can be made in relation to the new Unsplash licence.

Prior submissions to Unsplash under CC0: The vast majority of photos on Unsplash (i.e., photos submitted prior to the licensing change) were (I believe) submitted to Unsplash on the basis of CC0 (early versions of Unsplash’s terms and conditions were slightly different but I’m not going to worry about that for the purposes of this article).  Prior to the licensing change, the terms and conditions said this:

“6. License granted by User

Notwithstanding any other provision herein, please be aware that by submitting, uploading, or otherwise making available Pictures to the Website, you agree to make, and are hereby making, the Pictures available to the Company and all Users under the terms of Creative Commons Zero, which means you permanently and irrevocably waive, abandon, and surrender your copyrights in and to the Pictures. Please review the terms of Creative Commons Zero, which are incorporated into this Section 6 by reference.”

Consistently with this clause, Unsplash said people could use the images under CC0:

“All photos published on Unsplash are licensed under Creative Commons Zero which means you can copy, modify, distribute and use the photos for free, including commercial purposes, without asking permission from or providing attribution to the photographer or Unsplash.”

CC0 is primarily a public domain dedication. What this means is that, in countries where it’s possible to waive or relinquish your copyright in a work, the copyright essentially falls away with the result that the photos are in the ‘public domain’. To be in the ‘public domain’, in legal terms, means there’s no intellectual property right-related restriction on the work’s use. If the waiving of copyright isn’t effective, CC0 ‘falls back’ to a very broad and permissive licence (that, simply put, lets you do whatever you want with the work).

Using photos downloaded from Unsplash prior to the licensing change: Anyone who obtained a photo from Unsplash under CC0 can continue to use it as they wish (assuming the person who first submitted it to Unsplash was the true owner or was otherwise permitted to submit it under CC0 on behalf of the true owner) and without restriction because the Unsplash licensing change is not retrospective and does not alter the freedoms that those who downloaded the photos enjoyed when they downloaded them. Unsplash’s prior FAQs recognised this (my italics):

“Can I delete a photo once uploaded?

Yes. Login to your account and go to the Manage Photos tab under Account Settings. Find the photo you want to delete and click ‘Delete photo’.

However, due to the nature of the license, once a photo is released under CC0, the license is permanent and non-revocable, which means that your photo can continue to be used by the public (though it won’t be available on the Unsplash website). For more read the Creative Commons FAQ on the CC0 license.“

Images uploaded to Unsplash after the licensing change are not released or licensed under CC0: The WP Tavern article says “Luke Chesser, co-founder of Unsplash, explained on Twitter that individual photos are still CC0-licensed and therefor GPL compatible”. As far as I can see from the Twitter page the article links to, Luke did not say this. Rather, and as the WP Tavern notes, he said:

“The Unsplash license doesn’t violate GPL and can still be used in WordPress themes. There are no restrictions on the individual photos.”

Whilst photos submitted to Unsplash prior to the licensing change were submitted under CC0, and therefore available to all who downloaded them before the licensing change without restriction under CC0, from the date of the licensing change the owner of the photo who submits the photo does not relinquish copyright or grant the ‘fall-back’ license under CC0. There is no longer any mention of CC0 in the Unsplash terms and conditions, its separate licensing page or the help questions. The position now is that the person who submits the photo retains his or her copyright in the photo and grants Unsplash a very broad licence (including the right to sub-license). You can see this in the opening to clause 6 and in clause 6.B of the terms and conditions:

“YOU OWN ALL OF YOUR USER CONTENT, INCLUDING ANY PHOTOS THAT YOU UPLOAD TO THE SITE.

…

Limited License to Us. You grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to host, store, transfer, display, adapt, perform, reproduce, modify, translate, and distribute your User Content (in whole or in part) in any media formats and through any media channels (now known or hereafter developed). You understand that we will not pay you for any use of your Photos and that your Photos will be made available to the public for their use without providing you attribution or compensation.”

What Unsplash itself does now is sub-license users’ photos under the terms of its own and very broad licence, as set out at the beginning of this article.

The vast majority of people have nothing to worry about: The Unsplash licence is not quite as broad as the freedoms a person obtains under CC0, given the prohibition in the Unsplash licence on compiling photos to replicate a similar or competing service, but it is still very broad and in most cases will give users everything they need. As far as I can tell, Unsplash is only intending to clamp down on competing services. The vast, vast, vast majority of Unsplash users ought to have nothing to worry about. (This doesn’t mean they can be certain they are not infringing someone else’s copyright because it’s always possible for someone to upload a photo to Unsplash without the right to do so but that was the case before the licensing change and is the case with Creative Commons-licensed images too.)

But is the Unsplash licence really broad enough for distributed products? In my view, with its new licence Unsplash has intended to allow people to bundle up images from Unsplash in their own products, whether for free or commercial distribution, just as they could before.  A question and answer on the site supports this view:

“Can I use Unsplash photos as part of a product to sell?

Yes, you can use Unsplash photos as part of a product you sell. For example, using an Unsplash photo on a website that sells a product or service is fine. What we advocate against is selling an Unsplash photographer’s photo without adding to it creatively, through editing or other methods.”

However, do their own licence terms support this? As I say, I think Unsplash intends them to, but in my view they could – and should – be clearer. Remember that this is what the licence says:

“All photos published on Unsplash can be used for free. You can use them for commercial and noncommercial purposes. You do not need to ask permission from or provide credit to the photographer or Unsplash, although it is appreciated when possible.

More precisely, Unsplash grants you a nonexclusive copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash. This license does not include the right to compile photos from Unsplash to replicate a similar or competing service.”

The issue I see is that the licence appears to be granted to the person who accesses the image file from Unsplash. The licence doesn’t actually say anything about the same rights being granted to anyone who comes into possession of the image via the person who downloaded the image or other means, e.g., through downloading a product, like a theme, that contains the image as a discrete file, and the Unsplash licence that users receive does not include a right for them to sub-license on the same terms.

I suspect the authors of the Unsplash licence have sought to replicate the freedoms of CC0 (except for the competition point) but I suggest to Unsplash that they clarify the issue I’m raising here by amending the licence to read something like this:

“All photos published on Unsplash can be used for free. Except as stated below, you and every person who comes into possession of them can use them for commercial and noncommercial purposes. There is no need to ask for permission from or provide credit to the photographer or Unsplash, although credit is appreciated when possible.

More precisely, Unsplash grants you and every person who comes into possession of the photos a nonexclusive copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash. This license does not include the right to compile photos from Unsplash to replicate a similar or competing service.”

These changes are intended to ensure that downstream recipients of the photos receive the same licence from Unsplash. Both the GPL and the Creative Commons licences are structured in this way. Without these changes, distributors of products like website themes may be concerned that the end users of their products will not receive the rights they need to use the photos for their own purposes. Those end users could, of course, go to Unsplash and re-download the photos themselves, and Unsplash is unlikely ever to take issue with an end user’s use of a photo in this kind of situation, but theme developers and others may sleep better at night knowing that they and their end users have the rights they need.

(I’m not providing legal advice here to Unsplash or anyone else. My standard disclaimer applies and I note there is more that could be said in the Unsplash licence on the kinds of topics addressed in the Creative Commons licences.)  

Copyright owners can dual-license: Incidentally, the licensing change also means that the owner of a photo can post it to Unsplash and, because he or she is retaining the copyright, license the same photo under different terms elsewhere. Unsplash does not purport to restrict the true owner from doing this (and nor should it).

The first GPL question – what the GPL itself requires: Turning now to the GPL question, to my mind this is a red herring, at least in terms of what the GPL itself requires. As I explained in A reader asks: Theme reviews, CC0, model releases and GPL-compatibility:

“In its opinion on WordPress themes and the GPL, the Software Freedom Law Center appears to have treated image files (among others) as independent works that are, to paraphrase GPL v2, merely aggregated with the software on a volume of storage or distribution medium; for this reason, they do not need to be licensed under the GPL if their owners/contributors prefer not to.

If they are separate, independent files (they are really a form of data), one might argue that they are beyond the rationale and scope of what I consider to be the Free Software Foundation’s GPL-compatibility test (on which I think the theme review team relies) because they would not need to be part of a “derivative work” based on either the WordPress core’s or a theme’s software. Rather, they would be (or could be in the right conditions) part of a compilation that would comprise the derivative work, the image files and any other independent copyright files. The significance of this is that, if they are not part of a derivative work, then they are not caught by the GPL’s viral/propagation requirement and GPL-compatibility is not required of them. To put it another way, if someone were to make a derivative work of the GPL’d software in a theme file on WordPress.org, the ‘downstream GPL licensing of derivative works’ requirement would not apply to the images (unless they’d been separately and expressly licensed under the GPL in their own right). They could be included in the new theme files under their original licences (assuming those licences were broad enough to allow re-use by others).”

This is why I say the GPL is red herring in terms of what the GPL itself requires. (I still think the new Unsplash licence needs to be clarified though along the lines discussed above.)

The second GPL question – relevant to submission of themes to WordPress.org: Unfortunately (from the perspective of theme developers who use Unsplash images), my ‘red herring’ conclusion above is not the end of the story. There is a remaining and significant point that arises from the WordPress.org Theme Handbook. The Handbook says (my italics):

“If you wish to submit your creation to the free theme repository on WordPress.org, it must be 100% GPL compliant, including CSS and image files. Because the freedoms spelled out in the GPL are at the heart of WordPress, we encourage developers to distribute their themes with a 100% GPL-compatible license.”

As I explained in Theme reviews, CC0, model releases and GPL-compatibility, this statement should be treated as a policy call by the WordPress.org theme review team because, so far as including separate images within a WordPress theme folder is concerned, the GPL does not require ‘100% GPL compliance / compatibility’. In that article, I argued the case for allowing Creative Commons Attribution (CC-BY) and Creative Commons Attribution ShareAlike (CC-BY-SA) licensed images in themes submitted to the repository (because users would still receive all the rights they need which I think is what is important). If the new Unsplash licence is clarified in the manner suggested above, the same argument will apply to photos from Unsplash under that new licence although the argument will be stronger because the freedoms under the Unsplash licence will be broader.

Turning now to what, for some, will be a key point, in my view – if Unsplash clarifies its licence as suggested above – it would make no sense for the theme review team to reject a theme merely on the basis that it uses a photo from Unsplash that was downloaded under the terms of the new licence. To insist on that would be to insist on a level of ‘GPL purity’ that the GPL itself does not require and that, to my mind at least, would unreasonably restrict the ability of WordPress developers to use the awesome images available from Unsplash in themes submitted to the repository.

(Thanks to Jan Joseph Ybanez for the fish image, available on Unsplash.com, and thanks to Unsplash for providing the world with such an awesome service.)