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Cryptoprocta

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Posts posted by Cryptoprocta

  1. 21 minutes ago, MizBrown said:

     

    How would we find out?   Also, the US has lawyers who will represent people on contingency if the case looks good enough.  This is the best explanation I've seen of how contingency representation works:  https://www.nolo.com/legal-encyclopedia/what-is-a-contingency-fee.html

     

    If I understand correctly, the British system makes it less likely to have people filing frivolous lawsuits because if you lose, you pay the other sides legal costs.

    Just for clarity, there isn't really a British system. Scotland has its own legal system going back centuries. Northern Ireland has its own system going back to 1921. Wales shares most laws with England, but has some national laws also. Of course, many laws are in common, but it can be quite surprising how different Scots Law can be.

    Though possibly not with regard to the Alamy contract, but IANAL.

    Yes, I think it's possible that far fewer frivolous cases are brought here.

    Though one time I was driving along an A road and a bloke came out of a side street and hit me. That being clear and undisputed at the scene by him, me and the witnesses, I was amazed to get a Lawyer's Letter instigated by him, because these are fairly pricey. General opinion was that he was possibly insured for only 3rd party, fire and theft, and the damage to his car was quite a bit worse than mine. I ignored it, and heard no more about it.

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  2. 1 minute ago, Cryptoprocta said:

    That is precisely NOT what the worry is about.

    If one was worried about that, possibly a genuine mistake in mis-labelling something, one could take out liability insurance

    As you could read above, at least two insurance companies would not take on insuring Alamy's clauses as written. Another I looked at certainly didn't cover Alamy's wording in their standard contract for liability insurance.

     

    The worry is about what we can't control as set out in many previous posts.

     

    I'm not getting into this any further until we see what Alamy's redraft says.

     

  3. I got a reply to the letter I sent to Emily Shelley (https://discussion.alamy.com/topic/14386-contract-change-2021-official-thread/?do=findComment&comment=287305

    Sadly, I hadn't noticed Clause 5.1 when I wrote, but let's hope it will be redrafted for clarity.

    A lot of what she says has been said already by Alamy, but I've highlighted what she said about Exclusive content, as that is new:

    "

    Dear Liz
    Thank you for your email and I'm sorry it has taken me a while to get back to you.
     
    This is not about punishing people, but a business decision based on the value of the 'exclusive' collection. Around 17 million of the 260 million images on Alamy are marked as exclusive to us and we do not see any particular commercial or marketing benefit from this collection, and it varies widely in genre and quality. Our aim is to establish which images are truly exclusive and at the same time unlock infringements revenue, we will then assess the value of this collection to customers. We are aware that this removes the commission incentive for contributors to be exclusive to us and that those who were previously exclusive will see the biggest impact from these changes.
     
    Regarding 4.1.6, this change is to alter the wording that said 'UK, USA and elsewhere' to 'anywhere in the world'. Although this doesn't alter the legal meaning, it has caused confusion and concern and we are reviewing it internally to see if it needs redrafting to address this. Customers do pick up the liability for ensuring the images are fit for purpose in their country. 
     
    4.1.5. is designed to make sure that Alamy could add restrictions such as 'editorial only' to content where photographers had neglected to mark it as such. We will not be altering any restrictions set by the contributor but ensuring we stick to them. It seems this is not clear enough, so we are reviewing the wording of this clause in response to feedback from contributors.
     
    Clause 4.1.11 was already part of the contract under 4.8 previously but has been separated out. It has the same meaning. We require waiving of moral rights so that the contributor, or the copyright holder if different, can't claim against Alamy or the customer if the work is published without a credit or credited incorrectly and to allow the image to be modified from its original form. Without this we wouldn't be able to sell the content via the platform in the way that we do. 
     
    We now work with 80 distributors, and have gained around 30 distributor contracts via our merger with PA Images which are usually on a 50/50 basis. It's in Alamy's interest to work to get the best deal but in some cases the distributor will take the majority share if we feel it's the only way we can truly access that market, choice is limited and volumes are high. We have no desire not to be transparent on this but simply can't detail every single arrangement. We are keeping the opt-out available for distribution during the notice period for these changes.
     
    I apologise if you feel these changes have not been clear. They are drafted by in-house lawyers under English law. As mentioned, 4.1.5 is under review as is 4.1.6 following feedback.
     
    With regards,
    Emily
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  4. 43 minutes ago, Sultanpepa said:

     

    I wonder if there's a possibility for an Alamy wide indemnity insurance for a small annual fee collected by Alamy each year. There are supposed to be 180,000 contributors after all?

    Or just take it out of their 20%/60% clawback.

    If we were to individually 'share', what would stop them making that another cash cow, which they could keep milking for more each year?

    Them doing it would make it more likely they'd hold the other parties responsible for their actions, not harmless, to prevent their premiums going up too steeply.

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  5. 14 hours ago, Alamy said:

    Just a quick update for you here to confirm that we are reading all responses and it's clear to us that there is confusion around the wording of some of the specific clauses in the new contract. 

     

    We're sorry for the confusion these have caused. More details to follow soon, but we are looking at the possibility of rewording some clauses to make them clearer as well as providing further info here as to how the clauses could be used.

     

    Best regards

     

    Alamy

    Remember, you need to give us 45 days notice after you change the wording, as that will be a new contract.

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  6. 13 minutes ago, Dave Richards said:

    I’m certainly no lawyer but just had a thought that maybe some of the revised/new contract conditions could be considered onerous and wouldn’t stand up in court.

     

    Could be, but I thought at the beginning that it was an unreasonable contract. I just didn't want to be the one testing it in a foreign legislature.

    English Law:

    https://www.wrighthassall.co.uk/knowledge-base/the-perils-of-unreasonable-contract-terms

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  7. 1 hour ago, Stokie said:

     

    That's with Simply Business. If you mean Photoguard, i've checked with them and they don't do professional indemnity as an add on to the insurance policy i've got with them for equipment and public liability.

     

     

    That's with Simply Business

     

     

    Yes, insurance is tax deductible.

    I just hopped onto Simply Business and their Professional Indemnity Insurance is specifically "For if you make mistakes that cost a client money." That's possible I guess if we mis-label an image, but it's not most of what the worry Alamy is currently causing us is about. It's mostly not about us making mistakes, it's about "Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns" doing something wrong. That wouldn't even cover us for the well-rehearsed blip in Alamy search which can link any word in the caption or caption with any other word to make an irrelevant phrase.

    Further into the getting a quote process, it says "Cover if a customer claims compensation for something that's gone wrong, for example if you make a mistake that means you fail to provide their photos." I'm still not sure this is the right product, but I guess I could contact them to find out. Except there seems not to be an email address on their site* and a phone assurance has even less relevance in court than James telling us in a forum post what 'they' did or didn't intend.

    *I've found their contact page.

     

    Oh, that was lucky. I had drafted a query on Simply Business's contact page, sending a linkto the new contract and highlighting the worrying clauses. I hadn't hit 'send' before coming back here and seeing Alamy's response, which must have crossed as I was writing the above so I didn't see it. I'll wait until we get the new contract draft.

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  8. 16 minutes ago, Stokie said:

    Just got a quote for profession indemnity insurance for £1,000,000 cover but with no legal fees covered which came out at £87.

     

    With £1,000,000 cover and up to £100,000 legal fees the quote came out at £160.

     

    Think I might take them up on the offer for peace of mind

     

    John.

    Is that an expense for tax purposes, do you know? I'd ask my accountant, but she's part-year and won't be working till late September.

  9. 4 minutes ago, MizBrown said:

     

    I've never been that good at maths.   How so?

    Think of two £40 sales instead of two £50 sales as being proporitionately the same as one sale for £80 instead of £100.

    £80 is 80% of (or 20% less than) £100, and £40 is 80% of (or 20% less than) £50.

     

    Alternately, 10% of £100 is £10; 10% of £50 is £5, so 20% of £50 is £10.

     

    If all else fails, do what I do: https://www.percentage-calculator.uk/

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  10. 27 minutes ago, AndrewP said:

    I’m trying to understand the practical realities of the indemnity clause.

    As a fictitious example: I photograph a street scene of some houses in a quaint village and state that there is property in the image and that I don’t have a release. A mortgage company uses the photo in an advert and the owner of one of the houses claims for damages from the mortgage company, who then contact Alamy saying they’ve done nothing wrong (when they clearly have in publishing without a release).

    Are Alamy really just going to pass on my details to the owner of the house and say “you’re on your own with this”? Surely a valid claim can only be made against the company that published the photo without a required property release in place? If I’ve annotated things correctly then I can’t be held responsible for the actions of others. Buyers also have a contract to agree to when purchasing.

    If however I had stated there was no property in the photo and a release was not required then I can see I would be leaving myself open to claims and Alamy would pass responsibly on to me to sort out.

    There have been previous instances were content has been in dispute with the property owners such as photographing on UK railway stations a few years back, photos of Haynes Manuals and also the Royal de Luxe giant puppets in Liverpool. Alamy have been the first line of defence to resolve the issue without the individual contributors getting directly involved.

    If we’re not sensible about this then we could get to the point where the only thing that’s safe to photograph is the sky.

    There's common sense, and there are 'unreasonable contracts'.

    But Alamy has spelled out "5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur".

    I* think that's unreasonable, as we can't control what customers do, even if we have 'locked down' our images far more than legally necessary.

    James' answer says they educate buyers, but even so, they still want US to be responsible if THEY misuse our images and have embedded that into our contract.

    *IANAL

    Caveat vendor.

    The man in the Clapham omnibus might well decide to say, "It's in the contract, you agreed to it".

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  11. 10 minutes ago, Richard Tadman said:

     

    I still have considerable reservations about the legitimacy of what Alamy is attempting to do and doubt that it is enforceable in law.
    Alamy is responsible for selling our images and contracting with the customer. We submit images that for the most part (indecency etc. aside) have no inherent existence until they are used and published. The image only becomes, racial/offensive or whatever when given a context and that is out of the control of the photographer. 
    I'd be very surprised if a court reached any conclusion other than it was an "Unfair Contract terms" exclusion that was unenforceable.

    I totally agree, but I don't have the time, money or emotional energy to be the test case.

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  12. 53 minutes ago, shearwater said:

    Alamy, you have to understand that you are loosing your real “core”, your contributors, the ones that took you here. The ones that have worked hard all this years. The ones that built this community. You should have motivated them, valued them, talked to them, not exploiting them as you are doing right now. They have lost the faith in you.

    PA won't see it that way.

    They bought a 'product' and now want to wring all they can from their investment, while minimising any risks or liabilities they might incur.

    It's "just business".

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  13. 5 hours ago, Thyrsis said:

    This forum started in April 2013 I think. It took over from the very successful AlamyPro forum on Yahoo which was run independently from Alamy. That’s where the ‘images found’ thread originally started and the ‘BHZ’ game. Quite a lot of folk here were on that forum. There was another forum before that too but I can't remember the name! 

    I think there was an official Alamy forum before 2013, but not in this 'home', I think it was on the main Alamy server, then they were split, so that the forum is now separate from the main Alamy site. The old one may be gone completely (?)

  14. 6 hours ago, Keith Douglas said:

    There was a mention of Clause 5.1 in the new contract on page 40 of this thread, but it didn't seem to get taken any further. There is certainly nothing in Alamy's reply about this.

     

    Existing 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its sub-licensees and assigns harmless against any prejudice, damage, liability or costs (including reasonable lawyers' fees) which any of the indemnified parties incur arising from or in respect of any claim that there has been a breach of your representations, obligations and warranties in this contract. This paragraph will remain in force after the termination of this contract.

     

    New 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity; (ii) any use, exploitation or distribution of the Content by the Indemnified Parties; (iii) any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and (iv) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract.  

     

    The way I read it the Existing 5.1 comes into play if the contributor has failed to do something that they should have done. The New 5.1 extends this further to include a number of things that are completely out of the control of the contributor. 

     

    I wonder if the changes have been prompted by this:

     

    https://petapixel.com/2019/07/10/magazine-says-its-stolen-cover-photo-was-a-stock-photo-of-the-photo/

     

     

    Good catch.

    New 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to:  ... ... ... (ii) any use, exploitation or distribution of the Content by the Indemnified Parties;

     

    James said above that the customers are told that they should not use files in certain ways; but why should they care when the contract holds them as 'indemnified'?

    Just when I thought it was safe to breathe again, it looks like we have to take the blame for what other people do ("any" use of the content).

    Back into worried mode.

     

    Again, "You will indemnify, defend (at the request of Alamy) and hold Alamy ... harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: ... (iii) any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content;"

    which implies that if Alamy make an honest mistake in pursuing a suspected infringement which someone has already paid, we cam be requested to defend them?

     

    It's not much good James coming in and saying "that's not what we meant" - if it's in the contract and we agree to it, we stand the risk of wasting a lot of time and money establishing that the contract is unreasonable. And that in for what is - for many of us - a foreign legislature, so unlikely to be in the scope of our local lawyer.

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