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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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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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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?

 

 

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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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