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Contract Change 2021 - Official thread


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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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4 hours ago, Alamy said:

 

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

 

 

James, Thank you for engaging with the forum regarding this issue. As I posted some of the more pointed questions, I hope you will be kind enough to answer.

In regards to 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... Question - If an image is marked as editorial only and a distributor or any other agent for Alamy sells it for non-editorial use, and Alamy is sued for damages, am I liable under the indemnification clause to defend Alamy or can I rely on your statement that Alamy agrees to indemnify me as the the “non-breaching party” harmless? Your answer seems to say yes, please confirm for clarification.

 

You state that you are liable if you infringe a copyright this is self evident. However my concern is not about copyright, but USAGE, and/or any breach of the contract itself You have not addressed that clearly. If an image is used in a way that is a breach not caused by me "the non-breaching party" what is my liability.

 

Thank you.

 

 

 

 

Edited by formerly snappyoncalifornia
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I can add to what Bill has said. One problem I have found is that permissions change. Many, many years ago when I was taking photos at the San Diego Zoo I called and spoke to them about it. They put no restrictions on usage but a number of years ago they became very strict.. asked Getty to remove images, etc. So, though I was told years ago that our zoos in NYC don't have restrictions I decided I'd better ask now. Alas, I should not be putting my images on Alamy. I have emailed Alamy and asked if they can remove all zoo photos and museum photos for me or if I have to do it. I now don't trust that anything will stay the same so it will be wild animals in wild places for me. For now, I am trying not to worry about New York City photos that have people and property in them. Deleted the few "street art" photos I had.

 

Paulette

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1 hour ago, MDM said:

Is it legal to publish pictures containing copyrighted architecture

We can chip a little bit off that for the UK and countries with freedom of panorama: yes.

A photograph of a building doesn't infringe on its copyright. CDPA s62.

1 hour ago, MDM said:

When does copyright apply to buildings or other structures such as bridges.

Same as a photograph. From the moment of creation, for 70 years after the death of the architect. But see above.

 

Edited by spacecadet
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19 minutes ago, formerly snappyoncalifornia said:

James, Thank you for engaging with the forum regarding this issue. As I posted some of the more pointed questions, I hope you will be kind enough to answer.

In regards to 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... Question - If an image is marked as editorial only and a distributor or any other agent for Alamy sells it for non-editorial use, and Alamy is sued for damages, am I liable under the indemnification clause to defend Alamy or can I rely on your statement that Alamy agrees to indemnify me as the the “non-breaching party” harmless? Your answer seems to say yes, please confirm for clarification.

 

You state that you are liable if you infringe a copyright this is self evident. However my concern is not about copyright, but USAGE, and/or any breach of the contract itself You have not addressed that clearly. If an image is used in a way that is a breach not caused by me "the non-breaching party" what is my liability.

 

Thank you.

 

 

 

 

 

That would be ludicrous though, you can't possibly hold the contributor responsible for what an agency unrelated to them does, and it would be laughed out of any sane court.

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9 minutes ago, Cal said:

 

That would be ludicrous though, you can't possibly hold the contributor responsible for what an agency unrelated to them does, and it would be laughed out of any sane court.

The only thing ludicrous about it is if you agreed, that is what indemnification means. The courts have upheld it, It's perfectly legal to be the sucker.

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2 minutes ago, formerly snappyoncalifornia said:

The only thing ludicrous about it is if you agreed, that is what indemnification means. The courts have upheld it, It's perfectly legal to be the sucker.

 

we can see if James comes back to address the point, though the highlighted red part of his post clarifies that the indemnification relates only to your obligations and on content infringement.

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6 hours 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 emailed Alamy and got the following reply.

 

"Hi Tony

 We can get these images deleted immediately for you but in general images of people and/or property that has been taken in a public place are fine to upload for editorial only if you’ve not got a release.

 Different countries will have different privacy laws so you just need to double check those.

 Can I just confirm it’s the 14 images in your deletion pending?

 Thanks,
Shelley"

 

The rules here in Spain are much stricter than in the UK when it comes to people images (marking images as editorial and no releases doesn't wash with the rules here) so I'm erring on the side of caution and deleting where I think appropriate.

So it seems if you ask nicely then there is a way to avoid the 6 month wait.

 

 

Edited by Tony ALS
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6 minutes ago, Cal said:

 

we can see if James comes back to address the point, though the highlighted red part of his post clarifies that the indemnification relates only to your obligations and on content infringement.

If Alamy is serious about what James has stated then the contract should replace the indemnification clause with  the following:

 

Cross Indemnification. Each party to this Agreement agrees to indemnify and hold the other party (the “non-breaching party”) harmless against every loss, cost, damage or expense (including reasonable attorney’s fees and expenses) incurred by the non-breaching party as a result of any breach by the other party of the terms of this Agreement or of any representation or warranty made by such party; provided the non-breaching party notifies the other party promptly after commencement of any action brought against it for which it may seek indemnity. This provision shall survive the termination of the Agreement.

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15 minutes ago, Harry Harrison said:

Perhaps I should know this but if I had similarly risky images that were taken in Spain, using the example from Tony ALS above, but I live in the UK, do I need to be just as concerned?

 

 

Since the contract is governed by English law, any breach would be litigated here, and since English law is different, one assumes not. I cannot see how you could  sue on Spanish right of publicity in an English court.

I have had images with identifiable people taken in Spain and published in Spain. Likewise France and Germany which also have  rights of publicity. The publishers have assume the risk.

Edited by spacecadet
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Just now, spacecadet said:

Since the contract is governed by English law, any breach would be litigated here, and since English law is different, one assumes not. You could not sue on Spanish right of publicity in an English court.

Thanks, I was in the process of editing the question so it wasn't just about me, but you've answered it in the way that I had hoped, and I think you've answered my more general question as well, the rules of whichever country you are resident in would apply rather than the one where you took the picture. i hope so anyway because none of us can be expected to know the law in every different country at any one time.

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49 minutes ago, spacecadet said:

We can chip a little bit off that for the UK and countries with freedom of panorama: yes.

A photograph of a building doesn't infringe on its copyright. CDPA s62.

Same as a photograph. From the moment of creation, for 70 years after the death of the architect. But see above.

 

 

 

but does that mean Alamy wants me to state "There are No property" in the image?  This is the one thing that i found odd, even though there clearly was physical matters which are someone's obvious property, the Account Exec used the term "no Single Property" in communication. 

 

So yes I have no problem uploading the image, but i still am not clear how i was supposed to answer Alamy's question, "Is there Property"? 

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3 minutes ago, Harry Harrison said:

Thanks, I was in the process of editing the question so it wasn't just about me, but you've answered it in the way that I had hoped, and I think you've answered my more general question as well, the rules of whichever country you are resident in would apply rather than the one where you took the picture. i hope so anyway because none of us can be expected to know the law in every different country at any one time.

Well, Alamy has cautioned us to be aware of the laws in the country of taking, but for the reason I stated I can't see how we could be pursued. Alamy, maybe, if it has a business presence in the country, but not one of us personally.

It can only be attempt to reduce the risk of publishers.

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24 minutes ago, Harry Harrison said:

Perhaps I should know this but if I had similarly risky images that were taken in Spain, using the example from Tony ALS above, but I live in the UK, do I need to be just as concerned?

 

 

 

Someone in Spain can always bring claims against you.  They can also bring claims against Alamy in Spanish court.   Alamy is now stating if your image respected laws, and you are always bound by local laws even as a tourist, they will not hold you liable for their defence.  

Of course i am not sure how easy and practical it is for someone getting a judgement from a Spanish court to come collect elsewhere.  Alamy having European offices might make it easier against them. 

 

 

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6 minutes ago, meanderingemu said:

but does that mean Alamy wants me to state "There are No property" in the image? 

At the moment I'm interpreting James' response to be that it doesn't matter since the default is 'N' anyway, the fact that the default is also 'No release' covers it. On a practical note I don't see how they can retrospectively fix those people and property fields so that they are  'null' unless you enter something because it's impossible to distinguish between those images where '0' people or 'N' for property have been entered intentionally.

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8 minutes ago, spacecadet said:

Well, Alamy has cautioned us to be aware of the laws in the country of taking, but for the reason I stated I can't see how we could be pursued. Alamy, maybe, if it has a business presence in the country, but not one of us personally.

It can only be attempt to reduce the risk of publishers.

i guess worse case scenario you get a judgement against you, and you have issues next time entering the jurisdiction, but again that is extreme.  I guess if you had image that made some dictator mad, and listed in their no entry list 😉

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2 minutes ago, Harry Harrison said:

At the moment I'm interpreting James' response to be that it doesn't matter since the default is 'N' anyway, the fact that the default is also 'No release' covers it. On a practical note I don't see how they can retrospectively fix those people and property fields so that they are  'null' unless you enter something because it's impossible to distinguish between those images where '0' people or 'N' for property have been entered intentionally.

 

but in that case i said there Was property, since to me someone owned those things.  So it was weird to have someone from Alamy used the terms "No Single Property".    I guess all it means is client has to come to a rep, to say let me check with contributor, but is this efficient?  Does that mean some clients just don't bother and go elsewhere where they can get a similar image already labelled "ready for commercial use"? 

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46 minutes ago, formerly snappyoncalifornia said:

If Alamy is serious about what James has stated then the contract should replace the indemnification clause with  the following:

 

Cross Indemnification. Each party to this Agreement agrees to indemnify and hold the other party (the “non-breaching party”) harmless against every loss, cost, damage or expense (including reasonable attorney’s fees and expenses) incurred by the non-breaching party as a result of any breach by the other party of the terms of this Agreement or of any representation or warranty made by such party; provided the non-breaching party notifies the other party promptly after commencement of any action brought against it for which it may seek indemnity. This provision shall survive the termination of the Agreement.

That wouild be much more equitable. This part of Clause 7.1 would also need adjusting to bring it in line.

 

Alamy will not be liable if it (or a Distributor) sells or otherwise makes available an item of Content outside the instructions specified by you.

 

Mark

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32 minutes ago, Harry Harrison said:

Thanks, I was in the process of editing the question so it wasn't just about me, but you've answered it in the way that I had hoped, and I think you've answered my more general question as well, the rules of whichever country you are resident in would apply rather than the one where you took the picture. i hope so anyway because none of us can be expected to know the law in every different country at any one time.

As I am in Spain I'm subject to Spanish law, which begs the question how do the contract terms affect someone who isn't in the UK and therefore not subject to English law, as are so many contributors. 

 

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1 hour ago, formerly snappyoncalifornia said:

If an image is used in a way that is a breach not caused by me "the non-breaching party" what is my liability.

 

Thank you.

 

 

This clause talks about liability on you, if you breach the contract. It is not talking about a breach that is not caused by you because that would not make it a breach.

 

More generally to all - please take this in the right spirit - as a kind of fair warning! - but the purpose of this thread was/is to offer a place where you as a contributor can post your feedback on the contract changes. It can never be a live Q+A or discussion of very detailed legal eventualities. It's just not possible. 

 

We have read each response and have taken feedback on board. I hope the tweaks to some of the specific clauses have shown that we take your feedback seriously. 

 

We understand the strength of feeling regarding the commission structure. We've been clear as to why that decision has been made via the statement Emily put out on the 17th of May regarding this. Our commission structure as outlined in the new contract will remain. 

 

Over the last pages over recent days there has been a lot of repeating of the same questions and concerns, even when they have been answered, heard, read and addressed either by us or by fellow forum members. 

 

Over the coming days this thread will be locked. The danger of going round in circles on the same issues is that it can cause confusion among those joining the thread late or not picking up on all the replies. This is in line with the general forum rules where threads are locked once they have run their course. 

 

A last reminder that for when you have specific questions for us on any issue regarding the contract, please drop the contributor relations team an email via contributors@alamy.com.

 

With best regards

 

James Allsworth

Head of Content

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Thanks for your attention, James.

 

I don't know how the law works in every nation of the world, but I do know that I can't be sued by anyone in New York if they don't serve papers on me. And I know that people/companies in NY will not go to the expense and bother of trying to sue someone in another country. 

 

Do you want to be 100% safe from everything? Well, don't go outside. You might be hit by a car. And don't stay home. Your building might catch on fire. Mine did.

 

Edo

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James, thank you for your clarification on these issues. I note that when a company is sold, the new owners make the rules even if the old owners remain to run it.

There are many reasons a company might decide to sell. It is not for us to stomp our feet over it. It is a business decision, and we contributors do not have a share in the business as much as some think we do or wish we did. 
Whom of us know the situations behind the scenes before the decision was made, and that we might not make the same decision if in their place.

Yes, Alamy was once different. When ownership changes, there are new sets of rules from people that see us as an asset or not, with no long-standing relationships. Business models are based on profit/loss.
That horse has left the barn, we either deal with it or leave the farm.

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