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Contract Change 2021 - Official thread


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14 hours ago, formerly snappyoncalifornia said:

Your income is being cut by 20% minimum. If Alamy get sued for any reason by ANYONE because of one of your images you must pay the legal fees. If Alamy loses the case YOU must pay the damages. Got it?

 

Uw inkomen wordt met minimaal 20% verlaagd. Als Alamy om welke reden dan ook door IEDEREEN wordt aangeklaagd vanwege een van uw afbeeldingen, moet u de juridische kosten betalen. Als Alamy de zaak verliest, moet JIJ de schadevergoeding betalen. Begrepen?

This is the worrying thing.... And it is the conclusion that many are coming to. If it is the case then it will be impossible to carry on as a contributor.

 

@Alamy We need to know if this is a correct interpretation and if not what is the correct legal interpretation...

Phil

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9 minutes ago, Phil Crean said:

This is the worrying thing.... And it is the conclusion that many are coming to. If it is the case then it will be impossible to carry on as a contributor.

 

@Alamy We need to know if this is a correct interpretation and if not what is the correct legal interpretation...

Phil

 

That is not correct.

 

This thread cannot be a continuous Q+A as there will always be times when we can't comment or answer each question posted, and it wouldn't be fair to those who don't get an answer. We continue to ask you to email us if you have any specific question.

 

However, to answer this, the key point of clause 5.1 is the highlighted section in red here:

 

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 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.

 

It means you are liable if you infringe a copyright (e.g by uploading content that is copyright protected or you don't have the rights to) and/or any breach of the contract itself (e.g, incorrectly marking an image as having a model release when it in fact doesn't).

 

This has always been part of the Alamy contract.

 

James Allsworth

Head of Content

 

 

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38 minutes ago, Joseph Clemson said:

 

I don't think you've missed anything, John. Remaining with Alamy increasingly looks like an impossibility for small contributors unless one is going to rely on crossing one's fingers and whistling in the dark. I was greatly struck by what formerlysnaponcalifornia posted when another contributor posted a request for clarity last night:

"Your income is being cut by 20% minimum. If Alamy get sued for any reason by ANYONE because of one of your images you must pay the legal fees. If Alamy loses the case YOU must pay the damages. Got it?"

That seems to put it in a nutshell, and a scary nutshell at that.

I'm still exploring professional indemnity insurance options but am feeling more and more gloomy about being able to continue here. Alamy's silence in the face of reported account terminations is telling. I don't feel at all wanted. 😟

 

Once again for the sake of balance I would like to point out that Clause 5.1, which is the one that seems to be scaring people, has been in the Alamy contract since at least 2010 in a very similar form to the current version. The May 17th version which did appear to be somewhat more draconian in relation to what we contributors are responsible for has been retracted.

 

I have quoted the two relevant  5.1 clauses below and they are very similar. In plain English it is my opinion that they are saying that if Alamy gets sued for anything and you, the contributor, have made warranties (see  Section 4) that turn out to be untrue, then you are indemnifying Alamy (saying that Alamy is not guilty) and agree to pay reasonable legal costs if that happened. So if you say  that you were legally allowed to take pictures and make them available for sale when you were not, then you are in breach and potentially liable.

 

So to summarise, not a lot has changed but it is a wakeup call to make sure one is not in breach of one's warranties. I do think that Alamy are making sure that they are legally watertight because of this drive to chase infringements which may well cause a backlash.

 

 

2010 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.

 

June 2020 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 just read James's post after I posted this and it seems to say pretty much the same thing. 

Edited by MDM
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39 minutes ago, Cal said:

 

if @Alamy could confirm for certain whether this is an accurate "plain English translation" that would be great.

confirm what?  even if they say no they won't the contract is still the contract.  remember they said they wouldn't reduce our share 6 months ago. 

Edited by meanderingemu
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The big Plain English message in my opinion is to make sure that whatever assertions you make are true. If you are taking pictures in museums, galleries or zoos for example, then read and abide by the terms and conditions. If you are taking pictures of strangers in public in other countries, then familiarise yourself with the laws of that country.

 

Me, I am erring on the side of caution even more than ever before, as the returns I get are just not worth the trouble, but I am not going to run away in panic mode either, having spent so much time building a smallish collection on here (which would have been a lot larger if I had not been so cautious and the returns for me not diminished so much in the last 5 years or so). My approach now and from here on is to delete anything that causes me any concern, even if it is only a very minor concern and to only upload material that causes me no concern whatsoever. I have marked everything as editorial only and contains property for now and am intending to work back in due course and remove any unnecessary restrictions. 

Edited by MDM
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2 minutes ago, MDM said:

The big Plain English message in my opinion is to make sure that whatever assertions you make are true. If you are taking pictures in museums, galleries or zoos for example, then read and abide by the terms and conditions. If you are taking pictures of strangers in public in other countries, then familiarise yourself with the laws of that country.

 

Me, I am erring on the side of caution even more than ever before, as the returns I get are just not worth the trouble, but I am not going to run away in panic mode either, having spent so much time building a smallish collection on here (which would have been a lot larger if I had not been so cautious and the returns foe me not diminished so much in the last 5 years or so). My approach now and from here on is to delete anything that causes me any concern, even if it is only a very minor concern and to only upload material that causes me no concern whatsoever. I have marked everything as editorial only and contains property for now and am intending to work back in due course and remove any unnecessary restrictions. 

 

Nice to hear a voice of reason....!

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31 minutes ago, Alamy said:

 

 

 

It means you are liable if you infringe a copyright (e.g by uploading content that is copyright protected or you don't have the rights to) and/or any breach of the contract itself (e.g, incorrectly marking an image as having a model release when it in fact doesn't).

 

This has always been part of the Alamy contract.

 

James Allsworth

Head of Content

 

 

 

 

This is another example of where the contract is unclear.  You interpret it's stating "Having a release when we didn't have one"....  It could as easily mean "Not stating NOT having one when we didn't".    These are two different interpretations, and since the optional part of AIM is Not contractual this is a fair reading,  If yours is correct why not having written That in the contract instead of the more wide clause you just wrote?

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I have been following this thread in the background which has proved to be disturbing and informative at the same time.

Business relationships have to be built on trust and that appears to have gone.

I have also added restrictions to all images and will be non-exclusive once the new contract comes into force.

Something which has been asked already and would help me and I guess plenty of others would be a window of opportunity to delete images which concern us immediately instead of having to wait 6 months.

It's clear to me that some images are a risk and it would seem reasonable with the contract change to allow those continuing with Alamy to review and cull portfolios before the changes come into force.

I will email Alamy regarding this and post any response I get.

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9 minutes ago, MDM said:

The big Plain English message in my opinion is to make sure that whatever assertions you make are true. If you are taking pictures in museums, galleries or zoos for example, then read and abide by the terms and conditions. If you are taking pictures of strangers in public in other countries, then familiarise yourself with the laws of that country.

 

Me, I am erring on the side of caution even more than ever before, as the returns I get are just not worth the trouble, but I am not going to run away in panic mode either, having spent so much time building a smallish collection on here (which would have been a lot larger if I had not been so cautious and the returns foe me not diminished so much in the last 5 years or so). My approach now and from here on is to delete anything that causes me any concern, even if it is only a very minor concern and to only upload material that causes me no concern whatsoever. I have marked everything as editorial only and contains property for now and am intending to work back in due course and remove any unnecessary restrictions. 

 

 

and i agree with this.  But this to me highlights the lost trust most of us have felt.  I have now realised i have 5-7% of my images for some reason i trusted Alamy that AIM was "Optional", and i didn't say there was property, nor that i had a release.  Before i always assumed that was fine, it was Optional, and Alamy was in partnership with us,  I don't feel this way anymore.

add fact this is not even searchable, even the excel download shows them wrong,  it meant again regoing through all files one by one.  They should never have claimed it was Optional. 

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24 minutes ago, Steve F said:

 

Nice to hear a voice of reason....!

 

It's OK for you. I live with it all the time. Sometimes I wish it would just shut up. 🤣🤣

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48 minutes ago, Alamy said:

 

Final point on this, but it is optional.

 

The liability / contract breach problem arises in this example if you enter false information. If you mark the image as released and it isn't, that's a breach. If you don't answer either way then that is not a breach because the information shown to us is not saying there is a release when their isn't - and this is where a problem would arise

 

If you enter "yes" and a customer plans out a usage that requires that release and it subsequently doesn't exist, you can see how that would be a problem, hence a breach of the contract.

 

Previously you asked "why could this just not be written in the contract like that" - contracts are legal documents written by lawyers. The language has to be so and our contract is not unique in that respect. 

 

Ultimately, if you are uploading material that you have the right to, essentially not breaking any laws in producing/uploading the images, not breaching other clauses in the contract and including accurate information then you have nothing to worry about regarding the liability clauses here that have essentially been there forever.

 

James A

 

thanks James.  My issue is when downloaded in Excel, blanks show as No Property, therefore would never trigger "i don't have a waiver", since it makes it claim i said there was no property.  I think this is something that need to be looked into.

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52 minutes ago, Tony ALS said:

I have been following this thread in the background which has proved to be disturbing and informative at the same time.

Business relationships have to be built on trust and that appears to have gone.

I have also added restrictions to all images and will be non-exclusive once the new contract comes into force.

Something which has been asked already and would help me and I guess plenty of others would be a window of opportunity to delete images which concern us immediately instead of having to wait 6 months.

It's clear to me that some images are a risk and it would seem reasonable with the contract change to allow those continuing with Alamy to review and cull portfolios before the changes come into force.

I will email Alamy regarding this and post any response I get.

 

 

I am also concerned that the images in 6 months waiting cannot be modified.  So i have images in there that i would now put as Editorial Only, No personal Usage which i can't.  I have now changed my deletion process, but this is a worry with the new contract, 

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In the light of this welcome clarification, and in a similar vein to meanderingemu above, I too would appreciate guidance on whether the defaults that exist in AIM for both models and property leave us covered for RM images or whether, as MDM has done, we need to do more, given that both these criteria are in the 'Optional' tab. 

 

So the defaults are:

Models - 0

Model release - N/A

 

Property - N

Property release - N/A

 

Are we covered by the fact that it clearly states that we have neither model or property releases or for each and every image do we have to agonise over whether there are people or property, how many models etc. when we don't have releases anyway?

 

If so then, like meanderingemu, I feel the defaults need looking into and perhaps these parameters should be moved from the 'Optional' tab in AIM and the fields for Models and Property should be blank until something is selected.

 

 

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47 minutes ago, meanderingemu said:

 

thanks James.  My issue is when downloaded in Excel, blanks show as No Property, therefore would never trigger "i don't have a waiver", since it makes it claim i said there was no property.  I think this is something that need to be looked into.

 

Ok thanks - we will look at that and try to get the info listed there updated to show "No info" rather than "No" - in any case, you would not be bound to a Yes / No answer if you haven't provided either.

 

I've updated the earlier reply to reflect that.

 

James A

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7 hours ago, Harry Harrison said:

In the light of this welcome clarification, and in a similar vein to meanderingemu above, I too would appreciate guidance on whether the defaults that exist in AIM for both models and property leave us covered for RM images or whether, as MDM has done, we need to do more, given that both these criteria are in the 'Optional' tab. 

 

So the defaults are:

Models - 0

Model release - N/A

 

Property - N

Property release - N/A

 

Are we covered by the fact that it clearly states that we have neither model or property releases or for each and every image do we have to agonise over whether there are people or property, how many models etc. when we don't have releases anyway?

 

If so then, like meanderingemu, I feel the defaults need looking into and perhaps these parameters should be moved from the 'Optional' tab in AIM and the fields for Models and Property should be blank until something is selected.

 

 

 

The people / property questions will remain optional. A problem for you would only arise if you say there is a release for either, and there isn't one. If you haven't told us either way then you would not be in breach of contract as a contributor supplying false/incorrect information. 

 

Of course there can still be liability issues for you if you've broken laws by taking / supplying the image or you've breached copyright etc. But for the release information example, the clause is concerned with false information, not lack of information on a field that is optional.

 

And as a final point, again this is not a new part of the contract. It's essentially been there forever in one form or another.

 

James A

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16 minutes ago, Alamy said:

 

The people / property questions will remain optional. The problem for your would only arise if you say there is a release for either, and there isn't one. If you haven't told us either way then you would not be in breach of contract as a contributor supplying false/incorrect information. 

 

Of course there can still be liability issues for you if you've broken laws by taking / supplying the image or you've breached copyright etc. But for the release information example, the clause is concerned with false information, not lack of information on a field that is optional.

 

And as a final point, again this is not a new part of the contract. It's essentially been there forever in one form or another.

 

James A

 

An dI believe @Alamy we're still waiting on you to give us justification as to why you're dropping the commission rate when you have repeatedly said that it wouldn't be dropped.

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14 hours ago, Sally said:

Agree, no conspiracies, my license sales are as per usual this month and not all small ones. What I am annoyed about are corrections to past licenses and unreported licenses either for images I know have already been used or unreported news licenses that ought to have been reported by now that may or may not be reported before the contract change.

Sally on more thing, note that "date of sale" doesn't look like a defined contractual term, so you may have ground to argue if Alamy uses an extra-contractual definition that goes against you, since they are the one writing it. 

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4 minutes ago, Jools Elliott said:

 

An dI believe @Alamy we're still waiting on you to give us justification as to why you're dropping the commission rate when you have repeatedly said that it wouldn't be dropped.

 

i think this is one of these items James referred to as " thread cannot be a continuous Q+A as there will always be times when we can't comment or answer each question posted".  

 

He did invite to send those by e-mail. 🤔

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12 minutes ago, MDM said:

What I would find useful would be some really authoritative guidance directly from Alamy about property releases, property in general, trademarks and copyright of related to architecture.  I am not talking about a blog post but something that we as contributors could point to and say that Alamy says it's ok or not ok to.......

 

I am thinking of questions such as: What actually constitutes property? When does copyright apply to buildings or other structures such as bridges. Is it legal to publish pictures containing copyrighted architecture and trademarks as editorial? What about pictures taken on public private property which is becoming more and more common? And many more.

 

Similarly it would be great to have really authoritative guidance on photographing people. There are loads of grey areas here at least from my limited perspective and it would be very helpful to have real clarity from Alamy.  I know that all of this even more complicated by variations in laws in different countries but some firm guidance as it relates to English law would be a great start. 

 

I think if Alamy did this it would help with some of the trust and fear issues (related mainly to the May 17 version of contract) that a lot of people have at the moment as it would demonstrate that Alamy is taking some of the responsibility, at least in terms of explaining the legal situation clearly, moreover as Alamy is apparently intending to take a harder line with infringements, which in turn will require contributors to be on solid ground in relation to the various assertions related to Section 4 of the contract. 

 

 

i second this.  I was shocked to find out according to an Alamy Account Executive yesterday that one of my image taken in central London along the Thames had "no single property" even though i clearly see buildings in background and a generic physical thing in forefront.  It made me question if I am shooting myself in the foot on some of my markings.  

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37 minutes ago, MDM said:

What I would find useful would be some really authoritative guidance directly from Alamy about property releases, property in general, trademarks and copyright of related to architecture. 

Absolutely, to this and the rest of your post, so much confusion throughout the forum, it should also take in the International aspect of such guidance.

 

I fear the problem might be that Alamy wouldn't be able to say anything definitive in terms of the legal situation, even solicitors don't seem to be able to do that, 'it depends' etc. On the other hand meanderingemu's information about his image containing 'no single property' (suggesting that perhaps they mean no single significant property) shows that they know the type of rules they work by.

 

Also, without naming any names, I suspect that these rules can be re-examined on an individual basis according to how much fuss a particular copyright holder/property owner makes.

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3 hours ago, MDM said:

 

Me, I am erring on the side of caution even more than ever before, 

 

Me too. Most of my port is going to be strictly editorial-only, no PU AND marked up as property/yes release/no, rather than leaving the optional fields unfilled as I did in some cases. 

 

53 minutes ago, MDM said:

What I would find useful would be some really authoritative guidance directly from Alamy about property releases, property in general, trademarks and copyright of related to architecture.  I am not talking about a blog post but something that we as contributors could point to and say that Alamy says it's ok or not ok to.......

 

I am thinking of questions such as: What actually constitutes property? When does copyright apply to buildings or other structures such as bridges. Is it legal to publish pictures containing copyrighted architecture and trademarks as editorial? What about pictures taken on public private property which is becoming more and more common? And many more. 

 

Yes it would be nice to have this, but for now I think it pays to be cautious and basically consider all meanings of the word property, and answer "yes" unless there is 0 doubt, which unless you're taking a photograph of the sky (no planes please) will be the case.

 

Obviously "fair use" still covers the appropriate bases but there are always grey areas with that and I'm certainly no longer willing to take risks with prominent brands or IP that fill more than a small percent of the frame even for editorial use. Perhaps this contract change has been a needed nudge that some of us needed (myself too perhaps) to do the necessary housecleaning even although there is no intention to fall foul of the rules.

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I can cope with all this contractual stuff about liability.

 

What I can't cope with is yet another unexpected and unjustified cut in my income which makes continued submission to Alamy economically unsustainable. 

 

Running faster just to stand still is one thing, doing it to go backwards makes no sense.

Edited by geogphotos
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While the liability verbiage may have been in the Alamy contract in about the same words forever, sometimes the liability ground shifts beneath us, as organizations start asserting various intellectual property rights that they had not stated before.

 

Two or three years ago I received an email from a lawyer representing an old Washington DC organization, demanding that I take down my images from there. Since their photography policy then stated that images from there could not be used for profit, I complied and took down those images. When she started asking about what income I had ever made from the images, I replied that archived web pages from their site from when I took the photos show that they had no photography policy listed, and in fact encouraged visitors to take lots of photos. Thanks to the wayback machine, I was able to tell her the whole history of their photo policy development. I also pointed out that when I took the photos, there was no ticketing for tours and no photo policies posted. I never heard from her again. 

 

Sometimes an organization contacts Alamy with the same concerns, and Alamy takes the necessary steps.

 

But the point is that many organizations are asserting more rights, which is another effect on potential liability.

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