Are Free Stock Image Sites Safe for News Publishers in Turkey?

Set the frame correctly: this is a contract question

FSEK governs how the economic rights in a work are transferred and how a licence to use them is granted. Legally, an image bank does nothing other than that: within the limits of the authority it obtained from the author, it offers you a licence to use. If any link in that chain is broken, the fact that you trusted a "free" label does not change the outcome.

• The statute recognises no legal category called "free", "copyright-free" or "royalty free"; these are commercial marketing terms.
• The source of your right is not the statute but the licence text you accepted.
• A licence text is a contract; whatever it says about scope, term and conditions is what applies.
• If the person granting the licence is not the rights holder, the permission they gave is invalid as well.
• A news website is as a rule regarded as commercial use; licences carrying a "personal use only" or "non-commercial use" restriction are not suitable for a news website.

FSEK Articles 48-52: transfer of rights and licences

This part of the statute shows you which questions to ask when reading any licence text.

Article 48 - The author or their heirs may transfer to others the
economic rights conferred on them by law, limited or unlimited as to
term, place and content, for consideration or without consideration.
Mere authority to exercise economic rights may also be left to another
person. (Licence.)
The acts of disposition listed in the paragraphs above are null and
void if they relate to a work that has not yet been created or that is
to be completed.

Article 49 - A person who has acquired an economic right, or a licence
to exercise such a right, from the author or their heirs may transfer
that right or that licence to another person only with their written
consent.
In the transfer of the right of adaptation, the consent of the author
or their heirs is likewise required in respect of the person acquiring
by transfer.

Article 51 - Contracts concerning the transfer of economic rights that
future legislation may confer on the author, or concerning the
exercise of such rights by others, are null and void.

Article 52 - Contracts and dispositions concerning economic rights
must be in writing, and the rights that form their subject matter must
be specified separately.

Four practical conclusions: (1) A transfer may be limited as to term, place and content - look at which countries, which period and which use the licence is valid for. (2) Under Article 49, transferring a licence to a third party requires the written consent of the author; the image bank's ability to grant you a licence rests on that chain. (3) Under Article 52, contracts concerning economic rights must be in writing and the rights must be specified separately. (4) Under Article 48(3), acts of disposition relating to a work that has not yet been created are null and void.

Types of licence and what they mean for a news site

The names of licence texts vary from site to site, but in practice the structures you will meet are limited in number. The table below shows the axes along which you should classify a licence when reading it.

A news website is a publication that generates revenue; whether through advertising, sponsorship or subscription, the activity is commercial. Using an image that carries a "non-commercial use" restriction on a news website therefore means stepping outside the scope of the licence. In sponsored content and advertorials the risk is greater still; we deal with that distinction separately in our article on labelling advertorials.

The real risk: when the uploader is not the rights holder

The biggest risk on free image sites is not the content of the licence text but the identity of the person standing behind it. Most of these sites run on user uploads and do not check one by one whether the uploader really is the photographer. A user who takes someone else's photograph and uploads it into a "free" pool can give you no rights at all - nobody can transfer a right they do not hold.

Does good faith protect you, then? FSEK Article 66(3) answers that question plainly: "Fault on the part of the infringer or of the persons referred to in the second paragraph is not required." In an action for removal of the infringement, in other words, your good faith does not change the outcome. Likewise, the claim in Article 68(1) does not depend on fault; the rights holder may demand up to three times the amount that could have been demanded had a contract been concluded, or three times the current market value. Fault is looked for only in respect of the pecuniary damages under Article 70(2).

Model release and property release

Copyright does not cover the rights of the person or the property appearing in the image. Even if a photographer transfers the economic rights in a photograph to you, the consent of the person in the photograph is a separate matter. The rule in FSEK Article 86(1) is clear: even if they do not qualify as works, pictures and portraits may not be exhibited or communicated to the public in any other manner without the consent of the person depicted. The three exceptions in the second paragraph (public figures; parades, official ceremonies and general assemblies; pictures relating to daily events) usually do not apply in a stock photograph scenario - because the person in a stock photograph is neither a public figure nor is the photograph related to a daily event.

• Model release: the written consent of the person in the photograph to the use of their image. Always look for it in stock images containing a recognisable person.
• Property release: the consent of the owner in images containing private property, interiors, a recognisable brand or a work of art.
• If a stock image contains a recognisable person and there is no model release, placing that image in editorial content as if it depicted a real person in the story is a separate risk.
• Pairing a stock image with a crime story, a health story or otherwise negative content may give rise to a personality rights argument even where there is a model release (under FSEK Article 86(4), Article 24 of the Turkish Civil Code is reserved).
• The personal data dimension is assessed separately; we deal with it in our article on the use of personal data in news reporting.

Risk checklist: before you download

LICENCE
[ ] The NAME and VERSION number of the licence noted
[ ] The full licence text downloaded as PDF/HTML and stored
[ ] Is it open to commercial use - does it say so expressly?
[ ] Is it limited to editorial use?
[ ] Are modifications/derivatives (cropping, montage, filters) free?
[ ] Is there a geographical or time limit? (FSEK Art. 48(1))
[ ] Is attribution required - has the required ATTRIBUTION TEXT been
    copied verbatim?
[ ] Can the licence be changed retroactively - is there such a clause?

OWNERSHIP OF RIGHTS
[ ] The uploading account's profile and upload history examined
[ ] Reverse image search carried out - has the image been published
    elsewhere with an earlier date?
[ ] Does the image carry a watermark, a signature or the trace of
    another image bank?
[ ] EXIF data of the photograph checked

PERSONS AND PROPERTY
[ ] Is there a recognisable person in the image?
[ ] Is a model release available - has the document been stored?
[ ] Is there a recognisable brand, logo, work of architecture or work
    of art?
[ ] Is a property release available?

EVIDENCE OF DOWNLOAD
[ ] Date and time of download recorded
[ ] Screenshot of the image page taken (with the licence visible)
[ ] Image ID / file number recorded
[ ] The person who downloaded it and the story it relates to recorded
[ ] Records archived so as to be kept at least for the limitation
    period for a dispute

Image credit and attribution template

In attribution-required licences, the form of the attribution text is part of the licence. Wording such as "Source: the internet" is both a breach of the licence and carries the risk of insufficient source citation within the meaning of FSEK Article 71(1)(5).

IMAGE CREDIT - STANDARD FORM

  Photograph: [photographer's name] / [name of image bank]
  Licence   : [full name and version of the licence]
  Image     : [image ID/number]

SAMPLE NEWSROOM RECORD (not published)

  Story             : ..................................
  Image file        : ..................................
  Source site       : ..................................
  Image URL         : ..................................
  Licence name/ver. : ..................................
  Commercial use    : yes / no
  Derivatives allowed: yes / no
  Attribution required: yes / no -> text: ..............
  Model release     : yes / no / not required
  Property release  : yes / no / not required
  Date of download  : ....../....../.......  time ........
  Downloaded by     : ..................................
  Screenshot file of the licence text: ..................
  Editor who assessed it: ..............................

What to do when a claim arrives

When a rights holder writes in saying "this photograph is mine", both panicking and quietly deleting the content and ignoring the claim are wrong. First pull out your records: if you have documents showing which site it came from, under which licence and on which date it was downloaded, your negotiating ground is stronger. Then verify who the claim came from and whether they really are the rights holder.

• Record the claim in writing; note the date and time.
• Ask for the document showing the claimant's ownership of the rights - FSEK Article 75(1) already requires this in a criminal investigation.
• Add your evidence of download and the licence text to the file.
• Taking the content down does not extinguish a claim for a sum in respect of past use; but it does stop the loss from growing.
• We covered the general procedure to follow on takedown requests in our article on what to do when a removal request arrives.

The institutional fix: keep the image pool on your own infrastructure

Free image sites can be used, on condition that you keep the licence and the evidence of download yourself. Keeping those records together with the image itself is the only way to be able to answer a claim that arrives three years later. The KEYDAL news publishing software lets you define licence, attribution text, download date and release status fields on media records, and lets you stop an image from going live while those fields are empty.