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willn

DACS- poss to claim independently

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Hi all and happy new year!

 

Does anyone know if there is anyway out of the present arrangement where Alamy claim DACs payback on my behalf, for the last few years I've been doing it myself and then last year I got a letter from DACS rejecting my application.

 

Turns out it was in an Alamy contract that I by default signed because I didn't open one of their emails giving me the opportunity to opt out. Anyone had any luck reversing this?  I wouldn't mind too much but I have other non- Alamy images that I want to claim for and this arrangement makes it complicated. Cheers, Will.

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Posted (edited)

AFAICS unless you opted out in 2016 you're bound by contract to let Alamy claim for you, so you've missed the boat. See contract s27.

Edited by spacecadet

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Oh dear , moral of the story- open all your emails :/  Thanks for getting back to me Spacecadet

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45 minutes ago, Richard Tadman said:

"Silence is not consent" - an established legal principle

Out of the blue, yes, but it's in the contract that notice by email or on the website is deemed received. s21.

OP could ask Alamy to reconsider- just say you missed the email.

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True; but there is a difference in law between successfully delivered (received ) and consenting to it.
Felthouse v Bindley - case law.

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Having Alamy claim for you in future many not be such a bad thing. The DACS system is changing to increasingly bias the payout towards specific identified usages, reported via their publication history form, and that is something which is difficult (though not impossible) to find for the individual contributor as Alamy give little information on which to identify how and where usages have occurred. 

 

Quote from the DACS website:

 

'For Payback 2019, the Publication History claim is worth 25% of the overall share of royalties for visual artists, last year it was 15%.

This percentage is increasing incrementally, stopping in 2021 at 30% for non-education publications and 40% for educational publications that are matched with the CLA’s list of photocopied UK publications:'

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Posted (edited)
35 minutes ago, Richard Tadman said:

True; but there is a difference in law between successfully delivered (received ) and consenting to it.
Felthouse v Bindley - case law.

From what I see the jugment was that there was no contract. Here there is and obligations have been exchanged.

It seems very clear, but I'm not a lawyer.

Edited by spacecadet

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Posted (edited)
1 hour ago, Joseph Clemson said:

Having Alamy claim for you in future many not be such a bad thing. The DACS system is changing to increasingly bias the payout towards specific identified usages, reported via their publication history form, and that is something which is difficult (though not impossible) to find for the individual contributor as Alamy give little information on which to identify how and where usages have occurred. 

 

Quote from the DACS website:

 

'For Payback 2019, the Publication History claim is worth 25% of the overall share of royalties for visual artists, last year it was 15%.

This percentage is increasing incrementally, stopping in 2021 at 30% for non-education publications and 40% for educational publications that are matched with the CLA’s list of photocopied UK publications:'

 

Could be good Joseph but will Alamy actually do the publication histories frankly i doubt it and certainly not without increasing their 'expenses" which they refuse to tell me the additional % over and above their normal take. As for retrospective publication history forget it -they would have to get all the ISBN/ISSN in order to qualify under the CLA rules.

 

Regen

 

Hi Joseph a couple of years ago you were good enough to send me a very comprehensive list of potential video agencies -which i have since lost -dont suppose you still have my email as would like to make contact again.

 

Edited by regen
contact Joseph
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6 hours ago, spacecadet said:

Out of the blue, yes, but it's in the contract that notice by email or on the website is deemed received. s21.

OP could ask Alamy to reconsider- just say you missed the email.

 

Without perpetuating a somewhat incidental topic, you are confusing two issues. s21 prescribes what means constitute valid notification to a contributor. Thus any of the means listed are deemed to have been received by you. i.e. it wouldn't be a defence to say you didn't receive it.
This is not the same as you agreeing to the contents of the notification which amounts to a contract amendment and effectively a new or counter-offer which you need to accept explicitly to incorporate it into the agreement. I'll go and get 'me' coat!

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On 03/01/2019 at 13:23, regen said:

 

Could be good Joseph but will Alamy actually do the publication histories frankly i doubt it and certainly not without increasing their 'expenses" which they refuse to tell me the additional % over and above their normal take. As for retrospective publication history forget it -they would have to get all the ISBN/ISSN in order to qualify under the CLA rules.

 

Regen

 

Hi Joseph a couple of years ago you were good enough to send me a very comprehensive list of potential video agencies -which i have since lost -dont suppose you still have my email as would like to make contact again.

 

 

I'd kind of assumed that if Alamy did the DACS claim for me they would maximise it by including a full publication history, I'm rather deflated to hear that they might not. When I start doing my own claim later this month I will enquire of them the advantages (if any) of letting them do it for me.

 

Sorry for the delay in responding, I'd decided that redecorating my daughter's bedroom was a more pressing need than trawling the Alamy forum :). I can't find any contact details for you, but if you have Facebook, you will find me by searching for "JY Images"  (not the similar "Jy.Images"). If you can see an amiable looking middle-aged chap with a grey beard, you have found me (unless your looking at a picture of Terry Pratchett, in which case he'll almost certainly be wearing a hat). Sorry, I'll stop rambling now....  

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On 02/01/2019 at 12:45, spacecadet said:

AFAICS unless you opted out in 2016 you're bound by contract to let Alamy claim for you, so you've missed the boat. See contract s27.

 

No opt out? Can Alamy do this?

 

I expect that Alamy will struggle to financially justify the effort required to locate publication details and ISBN/ISSN numbers (which as far as I'm aware they don't capture during the sales process) which required for the publication history part of the DACs claim) So the sums Alamy can claim may reduce as the Publication History percentage goes up? 

 

Fortunately I'm already opted out.

 

Mark

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1 minute ago, M.Chapman said:

 

No opt out? Can Alamy do this?

 

I expect that Alamy will struggle to financially justify the effort required to locate publication details and ISBN/ISSN numbers (which as far as I'm aware they don't capture during the sales process) which required for the publication history part of the DACs claim) So the sums Alamy can claim may reduce as the Publication History percentage goes up? 

 

Fortunately I'm already opted out.

 

Mark

 

Me too but I have let Alamy claim for me for TV rights only. Don't know if that is still available.

 

Allan

 

 

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Posted (edited)
On 03/01/2019 at 13:23, regen said:

 

Could be good Joseph but will Alamy actually do the publication histories frankly i doubt it and certainly not without increasing their 'expenses" which they refuse to tell me the additional % over and above their normal take. As for retrospective publication history forget it -they would have to get all the ISBN/ISSN in order to qualify under the CLA rules.

 

Regen

 

Indeed...

 

In 2017 I asked Alamy CR  the following;

  • Do you know the ISBN numbers associated with any of my DACs eligible sales to date?
  • If so, are you able to tell me how many you know? (So I can tell if you know more than me)?
  • When Alamy made DACs claims on behalf of other contributors this year, did you submit claims for the “distinct royalty pot” on their behalf if you had the ISBN numbers?

The reply was

  • As we are not claiming DACS on your behalf this year we don’t know any of the ISBN numbers so we can’t tell you how many we would have claimed for but it is likely to have been the same if not more than you claimed for. It is a lot of extra work for us to  find out this information which is why we take a cut.
  • We did submit claims for the ‘distinct royalty pot’ for all contributors eligible and we claimed for all sales where we had the ISBN numbers.

To me, this appears to confirm that Alamy doesn't record the ISBN / ISSN numbers and the publication title etc. at the point of sale. IMHO to gather this info retrospectively is unlikely to be cost effective (even less lucrative than pursuing infringements which Alamy seem to struggle with).

 

Mark

Edited by M.Chapman

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59 minutes ago, M.Chapman said:

 

Indeed...

 

In 2017 I asked Alamy CR  the following;

  • Do you know the ISBN numbers associated with any of my DACs eligible sales to date?
  • If so, are you able to tell me how many you know? (So I can tell if you know more than me)?
  • When Alamy made DACs claims on behalf of other contributors this year, did you submit claims for the “distinct royalty pot” on their behalf if you had the ISBN numbers?

The reply was

  • As we are not claiming DACS on your behalf this year we don’t know any of the ISBN numbers so we can’t tell you how many we would have claimed for but it is likely to have been the same if not more than you claimed for. It is a lot of extra work for us to  find out this information which is why we take a cut.
  • We did submit claims for the ‘distinct royalty pot’ for all contributors eligible and we claimed for all sales where we had the ISBN numbers.

To me, this appears to confirm that Alamy doesn't record the ISBN / ISSN numbers and the publication title etc. at the point of sale. IMHO to gather this info retrospectively is unlikely to cost effective (even less lucrative than pursuing infringements which Alamy seem struggle with).

 

Mark

 

Mark you do surprise me. Well not you personally but Alamy certainly does in not collecting all the information as to the destination of our image sales at point of sale. I would have thought that this would be something any library would do to keep tabs on the usage.

 

Allan

 

 

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33 minutes ago, Allan Bell said:

 

Mark you do surprise me. Well not you personally but Alamy certainly does in not collecting all the information as to the destination of our image sales at point of sale. I would have thought that this would be something any library would do to keep tabs on the usage.

 

Allan

 

 

With the all encompassing   licences they are doling out for peanuts using RM files it would be impossible to keep tabs on. They want to do everything electronically and are failing dismally in many areas at our expense and is a major reason why they need to reduce the commission levels-to pay for their mistakes and inadequacies. The traditional libraries I use are very good at this for their own sales but not so sure with some of their partner agencies.

Regen

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