Contract Change 2021 - Official thread

[Cal]

2 minutes ago, formerly snappyoncalifornia said:

So let's explain what is going on so we all understand this - (not a lawyer, this is not legal advise)

The new contract includes an indemnity clause, which in part reads: "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 ..." the key words here are any and all claims.

 

There are 2 types of indemnity clauses, the typical contract will have the phrase "to the extent arising out of"  signifying that your obligations are limited to your own mistakes or misconduct. So if we do our due diligence, mark everything as "editorial only", "non-exclusive", "no releases", then we should be safe, right? Ah, but look what Alamy has done, they use the "broad" form of indemnification signified by the term "any and all claims", which could expose you to liability for the actions or inaction of others. We are also forced to agree to cover the Alamy's attorneys' fees as a reimbursable expense.

 

Indemnification provisions are generally enforceable, but courts have commonly held that a plaintiff (Alamy) may not recover damages under an indemnity clause to the extent that the damages are an unforeseeable and improbable outcome of the other party's (the contributor) breach, negligence, or misconduct. So if we mark our images to avoid negligence and misconduct Alamy would have a hard time enforcing the clause. Further, courts (in the USA) generally have found such indemnification clauses to violate public policy.  Moreover, has Alamy's Indemnification clause been drafted clearly, as ambiguity is most often resolved by courts in favor of the indemnifying party (the contributor)? i would argue no, as they have required from us our due diligence in the marking of our images. I would argue that the clause is unreasonable and inequitable in all respects so that it's enforceability is called into question. If it ever came to it, I would counter sue Alamy for damages.

 

Thanks, and you are right, the "any and all claims" is dubious at best. It still makes me nervous about keeping my images here at all... I feel like I cannot trust that I won't be stiffed for someone else's mistake. The relationship feels one sided.

[formerly snappyoncalifornia]

3 minutes ago, Cal said:

 

Thanks, and you are right, the "any and all claims" is dubious at best. It still makes me nervous about keeping my images here at all... I feel like I cannot trust that I won't be stiffed for someone else's mistake. The relationship feels one sided.

It feels one-sided because it is one-sided. I would hope that some organization in the UK that has a public policy interest in these matters take up our cause in the courts, if applicable. We Americans leave it in your capable hands.

[Martin P Wilson]

I am grateful to Alamy for the new contract😉; that is not entirely tongue in cheek as I had more or less given up stock photography. It has been the spur I needed to abandon general stock photography which I have long argued was heading for oblivion.

 

My termination with Alamy is in hand I will be gone when the old contract ends. However I know where I am going and what I am doing with my photography, assisted by t he work I have been doing fo rmy PhD. I have a new direction and have written it up elsewhere, not allowed to post a link.

 

I hope I can stay in touch. All the best everyone.

 

[Betty LaRue]

1 minute ago, Martin P Wilson said:

I am grateful to Alamy for the new contract😉; that is not entirely tongue in cheek as I had more or less given up stock photography. It has been the spur I needed to abandon general stock photography which I have long argued was heading for oblivion.

 

My termination with Alamy is in hand I will be gone when the old contract ends. However I know where I am going and what I am doing with my photography, assisted by t he work I have been doing fo rmy PhD. I have a new direction and have written it up elsewhere, not allowed to post a link.

 

I hope I can stay in touch. All the best everyone.

 

Please do stay in touch. Good luck and happiness with your new endeavor.

[spacecadet]

32 minutes ago, formerly snappyoncalifornia said:

I would counter sue Alamy for damages.

All very well but who needs the grief? Litigation isn't a participant sport in the UK.

[Steve F]

1 hour ago, Cal said:

 

Thanks, and you are right, the "any and all claims" is dubious at best. It still makes me nervous about keeping my images here at all... I feel like I cannot trust that I won't be stiffed for someone else's mistake. The relationship feels one sided.

 

The contract clause you're referencing essentially remains the same as in the previous contract. Maybe I should defer to Alamy's contract writers, but I don't think the above clause is fully enforceable under English law:

 

[CarlMillerPhotos]

6 hours ago, MDM said:

 

 

Me too. I wish I could give myself a red arrow. I really deserve it. 🤣🤣 🤣🤣 🤣🤣 🤣

 

Don't feel bad. I got red arrows AND a "bad boy point" from Alamy because I suggested we use words as defined in the dictionary rather than going by what we wish they meaned. But here we are.

[geogphotos]

"None but ourselves can free our minds"

[Joseph Clemson]

1 hour ago, spacecadet said:

All very well but who needs the grief? Litigation isn't a participant sport in the UK.

 

You are so right about this. The issue about these legal requirements being imposed on us is not whether we may win or lose in a court of law, but that this contract renders us more at risk of having to defend ourselves in court. It is no comfort to know that the party taking action against us has no legitimate case or the contract is unfairly written if we are stuck with the grief and cost of defending the action. It is this that frighten the life out of me and I am frantically trying to identify an affordable combination of insurance, professional association membership and setting of restrictions on Alamy itself which will enable me to carry on being a stock photographer. 

[Mr Standfast]

54 minutes ago, Joseph Clemson said:

 

You are so right about this. The issue about these legal requirements being imposed on us is not whether we may win or lose in a court of law, but that this contract renders us more at risk of having to defend ourselves in court. It is no comfort to know that the party taking action against us has no legitimate case or the contract is unfairly written if we are stuck with the grief and cost of defending the action. It is this that frighten the life out of me and I am frantically trying to identify an affordable combination of insurance, professional association membership and setting of restrictions on Alamy itself which will enable me to carry on being a stock photographer. 

 

Well said. I am also taking a portfolio approach to mitigating the risk associated with selling pictures.  It's such a complex situation  that a single solution may not be appropriate. So I've reviewed my insurance, joined a Union and I am being very careful with the "optional" page of AIM.

 

Stay safe.

[sb photos]

3 hours ago, Phil Crean said:

🤣🤣🤣 Finally found it's true value

 

 

I've only had around 8 images published in the Sun, thankfully they were only credited to Alamy. Looking at all newspapers, they are all having a tough time.

[John Morrison]

1 hour ago, Mr Standfast said:

joined a Union

Me too: the Union of Ostlers, Farriers, Fletchers, Lamplighters, Cordwainers, Coopers, Wheelwrights, Drovers, Stock Photographers and Other Ancilliary Labourers in Obsolete Trades…

[gvallee]

On 13/06/2021 at 18:16, Jansos said:

With the new contract now coming into force on 24th July what is the latest date that we can tell Alamy that we intend to mark everything, almost, 'editorial' and Rights Managed?

I'm assuming they need some time to make the changes. When best to let them know of intent? Would like to leave it as late as possible. Any suggestions? Cheers!

 

Just got an email from Alamy. They have set my non-released images as editorial only. It only took them one day.

[formerly snappyoncalifornia]

5 hours ago, spacecadet said:

All very well but who needs the grief? Litigation isn't a participant sport in the UK.

"The grief" occurs when you realize that you have accepted a duty to defend Alamy and third party distributors and agents around the world even in the absence of a finding or allegation of negligence and that such liability is uninsurable.

The more I read up on the law, the scarier this all becomes. For Alamy to hold us legally responsible for another's liability is simply unfair. I am willing to accept responsibility for my own errors and omissions but am unwilling to be liable for the mistakes and oversights of others, completely out of my control. What do we do when a plea for basic fairness does not work? Speaking for myself, my guiding principle is that I will not accept unlimited or uninsurable liability imposed by a self-serving indemnity agreement. I insist that liabilities remain with those parties who are in the best position to control them.

[Ollie]

11 hours ago, MDM said:

 

The main objection has been from people who are licensing images themselves and do not want the Alamy infringements team contacting their clients without asking first if they have licensed the images themselves. That seems fair to me and a simple solution could be a tick box in the database saying yes or no. If yes then Alamy should contact the contributor first. If that is not a concern, then there is no problem although there is no longer any apparent financial advantage in having images marked exclusive.

"The main objection has been from people who are licensing images themselves..." or who have been with other agencies in the past (before Alamy's promise of 50% in exchange for exclusivity) which may have also licensed our images, and whose licenses are still valid.  Tracing sales by former agencies can be time-consuming, and there is always the risk of oversight.

[Betty LaRue]

I think I’ll leave mine exclusive until I get some idea if it is financially wise. I don’t chase my own. If Alamy chases and I get anything, it’s better than nothing. If it’s a wash, I’ll change.

[John Mitchell]

7 hours ago, formerly snappyoncalifornia said:

So let's explain what is going on so we all understand this - (not a lawyer, this is not legal advise)

The new contract includes an indemnity clause, which in part reads: "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 ..." the key words here are any and all claims.

 

 

 

"Any and all" sounds contradictory to me. If I told someone that I didn't eat "any and all" of my dinner, I think they would be very confused. Who dreams these weasel terms up, one wonders, and how much do they get paid. 🙄

 

 

Edited June 14, 2021 by John Mitchell

[Cal]

2 hours ago, formerly snappyoncalifornia said:

"The grief" occurs when you realize that you have accepted a duty to defend Alamy and third party distributors and agents around the world even in the absence of a finding or allegation of negligence and that such liability is uninsurable.

The more I read up on the law, the scarier this all becomes. For Alamy to hold us legally responsible for another's liability is simply unfair. I am willing to accept responsibility for my own errors and omissions but am unwilling to be liable for the mistakes and oversights of others, completely out of my control. What do we do when a plea for basic fairness does not work? Speaking for myself, my guiding principle is that I will not accept unlimited or uninsurable liability imposed by a self-serving indemnity agreement. I insist that liabilities remain with those parties who are in the best position to control them.

 

Yes, I've spent a couple of hours this evening (one of several) making sure my portfolio is as watertight as can be but deep down I feel like I should just nuke the whole lot. Shame really as my sales figures aren't all that bad and there are a couple of promising repeat sellers. I just don't know if it's a risk worth taking to be potentially held hostage over whatever transgression Alamy may decide is my fault. On the other hand, one doesn't want to throw the baby out with the bathwater, but I don't see much of an alternative.

Edited June 15, 2021 by Cal

[sb photos]

38 minutes ago, David Pimborough said:

 

Oh well, I guess the few bucks I make from Sun sales should help Rupert make some profit on the Sun then 😆

 

The financials of the Sun would be slightly healthier if their 'journalism' didn't cost them £30,000 plus costs earlier this year re a libel case brought by Labour MP Richard Burgon, and recently a substantial sum to settle Simon Hughes phone hacking claim. 

[M.Chapman]

14 hours ago, formerly snappyoncalifornia said:

The new contract includes an indemnity clause, which in part reads: "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 ..." the key words here are any and all claims.

But don't the followings words in that clause restrict the scope of the any and all to only those claims

 

"arising from or in in relation to: (i) any claim that the Content infringes any third party’s copyright; (ii) any breach of any your representations, obligations and warranties under this Contract or the System".

 

Not saying whether that's acceptable or not, but it does appear narrow the scope significantly.

 

Mark

 

Edited June 15, 2021 by M.Chapman

[spacecadet]

10 hours ago, formerly snappyoncalifornia said:

unfair.

...and under English law, which governs the contract, unfair terms are unenforceable. There's also precedent that a term is unfair if it imposes uninsurable obligations on any party. One hopes, and it is no more than a hope, that Alamy would not start a case in those circumstances, although the fact that their lawyers have written in a potentially unfair term is unhelpful.

My point was that you expressed a willingness to sue, which isn't an attitude prevalent here.

[imageplotter]

23 hours ago, gvallee said:

 

3 red arrows to each of us who mentioned jabs before her post, a brand new red arrow seconds after her reply to me. Yeah right. Sometimes I wonder why I love the Australian Bush.

 

 

Ok. Once again, just in case - I have not given you or the other people you mention red arrows. Is that clear now?  Sigh.

 

 

[sb photos]

26 minutes ago, spacecadet said:

...and under English law, which governs the contract, unfair terms are unenforceable. There's also precedent that a term is unfair if it imposes uninsurable obligations on any party. One hopes, and it is no more than a hope, that Alamy would not start a case in those circumstances, although the fact that their lawyers have written in a potentially unfair term is unhelpful.

My point was that you expressed a willingness to sue, which isn't an attitude prevalent here.

Not just Alamy’s contract, both other types of contracts often contain unenforceable clauses. The all important Employment Contract for example. Often tribunals find for employees against unlawful contract terms.

[Dave P]

This thread is now 110 pages long and I haven't read all of it so forgive me if this has already been mentioned... But is anyone else experiencing a recent drop in sales?

 

I've been averaging more than one sale per week for several years now but suddenly, with an increase in Alamy's commission pending, I've had no new sales reported for five weeks and counting. The last time I went that long without a sale was about five years ago. What's more I know there's been at least one sale because I had an image in The Guardian at the beginning of the month, correctly credited to me and Alamy.

 

It's a measure of just how much I now distrust Alamy that I strongly suspect them of deliberately holding back sales until the new commission structure comes in. Difficult to see how I can prove it but if I'm right it's not just sneaky, underhand and an appalling way to treat a contributor, but it's also fraud - plain and simple.

 

I'd be interested to know if anyone else is experiencing similar.

 

[wilkopix]

10 hours ago, Paul J said:

Just been looking at my previous sales, the gross figures always look better in USD,  $65 sounds good eh! I still don't know why a UK based company is dealing with USD then converting it at an unknown exchange rate. The Terms and conditions state the exchange rate 'will be within 2.5% of the spot rate on that day'. A hidden slice to Alamy. 

 

Anyway, once the new contract is in force that $65 sale will mean £18.50 to the photographer on 'Gold' although reduced to £15.70 for affiliate sale (minus up to 2.5% for exchange rate conversion)

 

Or £9.25 if on 'silver' - £7.85 for affiliate sale.  (minus up to 2.5% for exchange rate conversion)  I had to double check my maths, it reads that bad once written down.

I've always wondered about this dubious conversion, frequently from Sterling to Dollars and back to Sterling with a 2.5% spot rate conversion .. looks horribly like another deduction from the photographer that goes to Alamy. Maybe if they read forum posts they might care to explain it and why it is necessary for all transactions and not just those in foreign currencies.

Thanks for doing the maths Paul, that really is an awful return on our work!