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8 hours ago, sb photos said:

 

As mentioned in another post, I suspect most submissions will be from other agencies, not individual Alamy contributors. I often wonder how much some photographers earn based upon supplying an agency, then the images go through one or two more agencies before being marketed by Alamy. I've noticed a growth in names of photographers supplying live news by this route. It can't be worth the time and effort for the photographers. I considered it some time back, it wasn't worth it, and even more so now. Personally, I'm now more selective what I shoot, often fitting in with either my own interests or a day out for other reasons.

 

A lot of Alamy Blog's samples are from agencies and a fair chunk of its example photos are also model released.  If I remember correctly, agencies can set minimum prices in the new contract, but individual photographers can't.  

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8 minutes ago, spacecadet said:

I think not because it only refers to claims for copyright infringment. There's no copyright in Piers Corbyn's face. There may be personality rights (though not in the UK), or design right in his Savile Row suit, but no copyright.

Edit: What Geog said.

You warrant that you own the copyright anyway- re clause 2.

 

Understood. I've obviously jumped to some unnecessary conclusions then. My portfolio is marked up correctly but I remember some talk earlier on in the thread about possible ramifications arising from misuse of images (by the client) that were marked as editorial and this blame then being placed on the contributor. I have read back many pages but I can't find a clear answer as to whether this was debunked as a storm in a teacup or a valid concern?

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The fact that someone might  find conspiracy theories about Covid, vaccines and the pandemic incredibly offensive and downright dangerous (yes numerous people have become seriously ill and many have actually died as a consequence of believing these notions) does not mean it is illegal for you or anyone lose to photograph the proponents of these so-called theories and to make these photos available for licensing for editorial usage. England is still a free country and it is still legal for people to spread whatever conspiracy theory takes their fancy as long as it does not break other laws. However, if one was to phrase the captions differently in a way that was offensive to the subjects, it might be a different story. 

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5 minutes ago, Cal said:

 

Understood. I've obviously jumped to some unnecessary conclusions then. My portfolio is marked up correctly but I remember some talk earlier on in the thread about possible ramifications arising from misuse of images (by the client) that were marked as editorial and this blame then being placed on the contributor. I have read back many pages but I can't find a clear answer as to whether this was debunked as a storm in a teacup or a valid concern?

 

 

valid concern of misuse, yes it is and it always was.  Nothing has changed with this new contract.  I think people are just finally realising we do have some exposure, though likely highly minimal in most of our cases.  Now it is up to each and everyone to figure their risk tolerance- and this would vary based on location and type of photo you produce.  

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5 hours ago, Kathy deWitt said:

Someone please remind me...is there a danger to keeping images exclusive if you do not intend to place them elsewhere?

Thank you!

Kathy

 

As long as you haven't sold them directly to clients, there's no danger.  The problem was for people who had only placed photos at Alamy and no other agencies but had made direct client sales, as was allowed by Alamy's definition of exclusive (not on any other stock agency).   Now, photographers whose photos were exclusive in terms of only being with one stock agency but who had made direct client sales would not be contacted before their clients were asked if they had a legitimate contract for the work.  No direct clients or sales from one's own website, no problem. 

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5 hours ago, Kathy deWitt said:

Someone please remind me...is there a danger to keeping images exclusive if you do not intend to place them elsewhere?

Thank you!

Kathy

Ian, Rob, Steve, Miz Brown thankyou...helpful replies. Got it now.

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6 hours ago, Cal said:

Pardon me if I'm being dim (I probably am) but I still don't really see how the amendments to the contract changes the situation for us contributors.

 

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 copyright; (ii) 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.

 

I struggle with legalese but the above just sounds to me like a huge trap. My best selling photo by far is one of Piers Corbyn at a protest. It is marked editorial due to its nature and that it was a live news upload. At the time I felt that this was enough to cover all bases. The above now makes me feel unsure. If Piers (or anyone in the image for that matter) was to take issue with it existing on Alamy, the above section of the contract makes it sound like any complaint and possible intent to sue for damages lodged with Alamy would be directly passed on to me. How is press photography even viable then? I feel like I will now have to remove this set (and frankly anything else with people, IP or trademarks in it) for fear of being sued even although I have made the disclaimer it is editorial and/or contains unreleased property etc. Am I barking up the wrong tree or do others feel this new contract basically screws editorial contributors to Alamy?

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, it could be argued that Alamy's Indemnification clause has not been drafted clearly as they have required from us our due diligence in the marking of our images. This ambiguity is most often resolved by courts in favor of the indemnifying party (the contributor). 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.

Edited by formerly snappyoncalifornia
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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.

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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.

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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.

 

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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.

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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.

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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:

 

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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.

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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. 

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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.

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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.

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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…

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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.

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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.

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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.

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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.

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