Contract Change 2021 - Official thread

[meanderingemu]

1 hour ago, Cryptoprocta said:

That's the case in e.g. Scotland (and also the rest of the UK)*, but other countries could be different.

"Article 7 of the Human Rights Act means you cannot be charged with a criminal offence for an action that was not a crime when you committed it.

This means that public authorities must explain clearly what counts as a criminal offence so you know when you are breaking the law.

It is also against the law for the courts to give you a heavier punishment than was available at the time you committed an offence."

This also seems to apply to the EU.

 

i would think images without right is more a civil offence than criminal. Not sure if that affects the ruling. 

 

note:  saw FSC addressed it above.  

Edited June 18, 2021 by meanderingemu

[meanderingemu]

53 minutes ago, Joseph Clemson said:

 

I'm not a lawyer and this is not any kind of legal advice. However, it has guided me in what I have shot and submitted in recent years.

 

Alamy introduced a specific clause to the contributor contract 15th June 2016. 

 

4.14 The Image was not taken in any place where photography for commercial gain is forbidden, e.g. some museums, art galleries and other public or private buildings or areas.

 

This will include most zoos and wildlife parks as their terms and conditions for entry explititly forbid photography for commercial gain. This clause is renumbered 4.1.14 in the new contract. 

 

Prior to this clause being introduced I don't think uploading such images would be a breach of the Alamy contract, however if such an image (taken before June 2016) were licenced and published and the zoo or whoever took exception to it, I think they could take action against the photographer and possibly the agency, if they were of a mind to do so. I've not heard of it happening, in the UK at least.  A lot depends too on the tems and conditions of entry in force at the time. 

 

I've been well aware of this for years and on those rare occasions I have gone to a zoo or other place where commercial photography (without written permission) is forbidden, I have to grit my teeth and do the photography simply for my own pleasure.

 

 

 

pretty sure even under current contract you were not allowed to upload images that were not obtained in a matter acceptable to the property owner when on private property.  

 

that said, there are plenty of such images in all stock agencies.  

[MizBrown]

3 hours ago, geogphotos said:

I chatted to a long-time Alamy photographer last week who had no idea about the contract change. He stopped any active involvement years ago. Quite likely his email has changed, he doesn't actively check sales or his account.  Gave up a while back in frustration at QC.

 

Out of the 70,000 or so Alamy contributors I wonder how many are dormant, non-responsive, unaware, not interested.

 

That is one of the downsides of crowd - sourcing. 

 

Through the internet, I know two people who have small portfolios at Alamy who may simply not care about what they might get in the future since the works already done.  One was a professional wedding and bar mitzvah photographer before turning to computer work.   Other is an enthusiastic amateur.   Neither has as many as a thousand photos up.

 

I think most of what Alamy licenses are agency photos with releases.  That's the majority of what they post on their blog.   The individual photographers fill in the holes, and probably do things that wouldn't be commercially predictable for agency photographers to be doing, or where cost would be prohibitive if the photos were taken strictly for commercial gain. 

[formerly snappyoncalifornia]

18 minutes ago, MizBrown said:

 

Through the internet, I know two people who have small portfolios at Alamy who may simply not care about what they might get in the future since the works already done.  One was a professional wedding and bar mitzvah photographer before turning to computer work.   Other is an enthusiastic amateur.   Neither has as many as a thousand photos up.

 

I think most of what Alamy licenses are agency photos with releases.  That's the majority of what they post on their blog.   The individual photographers fill in the holes, and probably do things that wouldn't be commercially predictable for agency photographers to be doing, or where cost would be prohibitive if the photos were taken strictly for commercial gain. 

I worked for a business that had holding accounts for several hundred clients.The amount of interest income generated annually was enough to buy the top executives a new Mercedes every couple of years. Some clients went out of business and abandoned their accounts. It happens.

[formerly snappyoncalifornia]

1 hour ago, NYCat said:

 

I had this in mind when I asked so this was the exchange...

 

"Do you have any objection to having photos taken during a zoo visit on a stock photography site to be sold for editorial use only?"

 

I got this response…

 

"We do, sorry.  

We charge for commercial photography.   

Photos are allowed at the zoo for personal use only. "

 

I wanted to be clear that I took the photos on a visit to the zoo and that they would be offered for editorial use only.

 

I suppose I could take this further because it is a shame that photo buyers can't go to Alamy for photos. Sometimes they specifically want zoo photos and I doubt they are contacting a bunch of zoos individually. Basically, I do this for fun and getting "into the weeds" , as they say, does not feel like fun.

 

Paulette
 

I'll be honest, I have zoo image ANIMALS for sale. I have been extremely careful to edit out any structure or landscaping that makes the location identifiable. I think it would be extraordinarily hard for someone to claim...that's my turtle!

[gvallee]

1 hour ago, Paul J said:

 

One problem with this new contract is the deletion of images, they will still be on sale for 180 days after deletion and when the new contract is in force. 

 

No, not the way I did it.

[MDM]

1 hour ago, Joseph Clemson said:

 

I'm not a lawyer and this is not any kind of legal advice. However, it has guided me in what I have shot and submitted in recent years.

 

Alamy introduced a specific clause to the contributor contract 15th June 2016. 

 

4.14 The Image was not taken in any place where photography for commercial gain is forbidden, e.g. some museums, art galleries and other public or private buildings or areas.

 

This will include most zoos and wildlife parks as their terms and conditions for entry explititly forbid photography for commercial gain. This clause is renumbered 4.1.14 in the new contract. 

 

Prior to this clause being introduced I don't think uploading such images would be a breach of the Alamy contract, however if such an image (taken before June 2016) were licenced and published and the zoo or whoever took exception to it, I think they could take action against the photographer and possibly the agency, if they were of a mind to do so. I've not heard of it happening, in the UK at least.  A lot depends too on the tems and conditions of entry in force at the time. 

 

I've been well aware of this for years and on those rare occasions I have gone to a zoo or other place where commercial photography (without written permission) is forbidden, I have to grit my teeth and do the photography simply for my own pleasure.

 

 

This is true and whoever put the confused emoji on it needs to re-read and rethink. It does not breach the Alamy contract before that time. However, it fails to make an important if obvious  point. While it may not have been a breach of the Alamy contract specifically, it may well be in breach of laws related to entry to a property. 

Edited June 18, 2021 by MDM

[MDM]

1 hour ago, formerly snappyoncalifornia said:

There is difference between commercial use and commercial gain. If someone pays me for an editorial image, that's commercial gain. 

 

This is true but irrelevant in answering Joe's post. Joe has not mentioned anything about this. He is only referring to commercial gain in the context of being paid for photography and he is correct in what he says. 

[imageplotter]

2 hours ago, Joseph Clemson said:

 

 

4.14 The Image was not taken in any place where photography for commercial gain is forbidden, e.g. some museums, art galleries and other public or private buildings or areas.

 

This will include most zoos and wildlife parks as their terms and conditions for entry explititly forbid photography for commercial gain. This clause is renumbered 4.1.14 in the new contract. 

 

 

 

Yes, it probably does. Here's where it gets a bit murky though. I, together with many others (sometimes up to 40 press photographers, freelance, wire agency and the few remaining staffers, plus camera crews) often attend zoo press photo calls, at London Zoo, Whipsnade etc. ZSL want us to take those images (and whilst they also mail out freebies by their own tog to the editors, these are often not as nice and tend to be for online use or smaller publications who rely on freebies), and they keenly want to get coverage. So far so good. If we were to all have these images available for the live news period only (as used to be the case for a brief while with the Tate and their photo calls), far fewer photographers would attend. A few hastily edited pics from the better photo calls get usage on the day after/48hrs (not all of the pressers are visually that interesting), but quite a few more get usage in the weeks and months afterwards. And ZSL are generally quite happy about the extra PR they get. This year, I should think they'll be extra keen on any coverage they get (except for the odd negative headline), given that all zoos struggle during covid and really need to make up for lost revenue.

 

 After the presser, once I've filed, I tend to hang around for a bit (if there are no other news events or photo calls immediately afterwards) and do some add-on shots of other animals that might fit a news theme (hot or cold temperatures, seasons, zoo babies etc) and file a few more. A few times, these have then also been used by newspapers (occasionally with Alamy, more often when pinged out by another news pic agency) because they may just happen to have been visually more appealing, and the paper needed a vibrant 'happy' pic to fill a space somewhere. Again, the zoos tend to be quite happy about this (I often send them a quick mail that I've filed a few more, but not always), it rarely generates negative PR and may translate into ticket sales for them. 

 

My point is - there is a grey area in all this. I for one will be unlikely to still attend all of their photo calls if I had to delete the images after the news period, I suspect it could create friction with wires distributing via Alamy, too, if their images are deleted soon after submission, plus it creates additional work. 

 

 

 

Edited June 18, 2021 by imageplotter

[geogphotos]

I have a very few zoo images. I did email the zoo after visiting and they said that it was okay for me to send them to Alamy for editorial stock. This was some 15 years ago. No I didn't keep the email exchange. Will I be deleting them? No I won't. I reckon the chance of ending up facing a legal challenge over this is so close to zero to be safely ignored. 

 

A few times I have had emails from Alamy about permissions and when I was in the wrong I admitted it and the pics were taken down. Maybe the most 'risky' was a copy of an old Marloboro Man cigarette advert from the 1970s that was licensed a few times. In the end Philip Morris must have found out and requested that it be taken down. They did not want to sue me or bankrupt me. 

 

 

[Steve F]

15 minutes ago, geogphotos said:

I have a very few zoo images. I did email the zoo after visiting and they said that it was okay for me to send them to Alamy for editorial stock. This was some 15 years ago. No I didn't keep the email exchange. Will I be deleting them? No I won't. I reckon the chance of ending up facing a legal challenge over this is so close to zero to be safely ignored. 

 

A few times I have had emails from Alamy about permissions and when I was in the wrong I admitted it and the pics were taken down. Maybe the most 'risky' was a copy of an old Marloboro Man cigarette advert from the 1970s that was licensed a few times. In the end Philip Morris must have found out and requested that it be taken down. They did not want to sue me or bankrupt me. 

 

 

 

Exactly. Companies generally don't sue people with no money (i.e. general members of the public). It's not worth it and bad publicity.

[geogphotos]

49 minutes ago, Steve F said:

 

Exactly. Companies generally don't sue people with no money (i.e. general members of the public). It's not worth it and bad publicity.

 

 

And one thing that they make sure of is that stock photographers have no money!

[Shergar]

2.10 By marking Content as Exclusive, you grant Alamy the right to chase third party infringements of the Content without Alamy having to consult you. Where pursuing such infringements if it is found that the Content has been licensed through another licensing platform, Alamy has the right to recoup any fees incurred in the pursuit of any action taken.

 

If we agree to the new contract, whats to stop Alamy just stopping any future income without the need to take us to court to recoup any fees, if we should find ourselves in this position?

 

Thanks

Cheers and gone

Shergar

[meanderingemu]

2 minutes ago, Shergar said:

 

2.10 By marking Content as Exclusive, you grant Alamy the right to chase third party infringements of the Content without Alamy having to consult you. Where pursuing such infringements if it is found that the Content has been licensed through another licensing platform, Alamy has the right to recoup any fees incurred in the pursuit of any action taken.

 

If we agree to the new contract, whats to stop Alamy just stopping any future income without the need to take us to court to recoup any fees, if we should find ourselves in this position?

 

Thanks

Cheers and gone

Shergar

 

 

small victory but probably the contract, section 12.5.3  only allows them to recoup indemnity from Section 5, not 2.10.  

 

 

[MDM]

19 minutes ago, Shergar said:

 

2.10 By marking Content as Exclusive, you grant Alamy the right to chase third party infringements of the Content without Alamy having to consult you. Where pursuing such infringements if it is found that the Content has been licensed through another licensing platform, Alamy has the right to recoup any fees incurred in the pursuit of any action taken.

 

If we agree to the new contract, whats to stop Alamy just stopping any future income without the need to take us to court to recoup any fees, if we should find ourselves in this position?

 

Thanks

Cheers and gone

Shergar

 

Probably nothing. Just make sure you are accurate if marking content as exclusive or simply mark it as non-exclusive which avoids any problems in this respect. If there is any doubt (images that you may have had on other platforms in the past), then don't mark them as exclusive. There is no advantage to marking images as exclusive now anyway unless you want Alamy to chase infringements without notifying you. If you have made a false declaration of exclusivity, then it is Alamy's right to recoup any fees incurred in that process and that seems fair enough. But your question hinges on the assumption that you would be making enough money to cover Alamy's losses. That might not be the case if they are talking legal fees.

 

 

Edited June 18, 2021 by MDM

[formerly snappyoncalifornia]

In researching indemnification insurance I came across a UK company called "AON"

(see https://www.aon.com/getmedia/90b4c09e-05cb-40c2-af7a-9f4876c278de/Aon-NL-IP-Liability_FAQ-Purchasing-Scenarios.aspx)

It looks like they offer Intellectual Property Liability Coverage. I wonder if our current scenario is applicable and they could offer individual or group coverage? Anyone in the UK want to look into this?

 

[gardenbush]

8 hours ago, geogphotos said:

 

It will stay confusing and confused because Alamy are not in a position to require us all to actively respond to the new contract. They can't insist on a Yes or No by a certain date because there would just be too many non-replies. It is contract change by default, by assumption, by passivity. 

I have alreadt resigned and my contract comes to an end on the 30 June 2021 - what I am alluding to is that between the 17 May 2021 and the 30 June 2021 I am not in contract with Alamy - I am waiting for a response...

 

[M.Chapman]

7 hours ago, Paul J said:

One problem with this new contract is the deletion of images, they will still be on sale for 180 days after deletion and when the new contract is in force. 

I checked this issue with Emily (MD). Her emailed response is that if I wish to ensure images are deleted before the new contract comes into force I need to make a request to Contributor Services and not use AIM (which takes 90 days to take effect). She also states that the new contract places no greater risks on the contributor than the old one. Here's exactly what she said.

"If your images are not deleted for 90 days then they would be bound by the new contract for any sales made after July 24. If they are deleted before July 24 by way of a request to the Contributor Relations team, then they would be covered by the old contract up to that point. I should point out however, that both these contracts place the same liabilities and obligations on you so one is no greater risk than the other."

 

Although Emily states the risks haven't changed, I'm still going to request imediate deletion of some images. Even if the contract's laibilities have not have changed I feel the "climate" has on 3 scores.

 

1. we are moving towards being a more litigous society.
2. I previously felt (possibly incorrectly) that if a third party made a claim Alamy would work with the contributor to defend. Now I fear that they might simply pass the buck....
3. The decreasing licence revenue and % commission mean it's not worth the risk

 

Mark

 

Edited June 18, 2021 by M.Chapman

[Martyn]

6 hours ago, spacecadet said:

Some of us take our own view about this clause It cannot possibly apply retrospectively- as Crypto says, you can't be liable for something which was acceptable when you did it- and one cannot imagine damages beyond the venue's photography fee being awarded even if a case were lost.

 

Not so sure about that ... not so long back we had the Network Rail fiasco ... images taken before Network Rail even existed and were fine before were deemed to be not ok and even though they backed down a bit after pressure from Alamy, those images are still only allowed to be used as editorial ...

[M.Chapman]

2 hours ago, meanderingemu said:

small victory but probably the contract, section 12.5.3  only allows them to recoup indemnity from Section 5, not 2.10. 

 

Except 12.5.3 contains the words "but not limited to"....

 

Mark

Edited June 18, 2021 by M.Chapman

[meanderingemu]

23 minutes ago, M.Chapman said:

 

Except 12.5.3 contains the words "but not limited to"....

 

Mark

 

 

i would be comfortable in court to argue that the fact the specifically name section 5, and specifically had 2 in a totally different section, where it could have been included in 5,  that intent was not there, since they are the one who wrote it.  A global "and anything else" has little weight when you think time to make such a distinction, and would generally be more to include related things they didn't include.   Burden of proof is always on the contract writer.  

[Panthera tigris]

11 hours ago, M.Chapman said:

Chasing infringements without consulting the contributor is going to be fraught with problems.

I suspect that chasing infringements is going to be limited to those contract users such as the media who have accounts with Alamy. Its just too fraught with problems otherwise. I also suspect its just an excuse to cut "50%" and will go the way of "video", "exclusive" etc. Ideas that sound good but end up being quietly dumped or not reported on.

[Keith Douglas]

11 hours ago, M.Chapman said:

Although Emily states the risks haven't changed, I'm still going to request imediate deletion of some images. Even if the contract's laibilities have not have changed I feel the "climate" has on 3 scores.

 

1. we are moving towards being a more litigous society.
2. I previously felt (possibly incorrectly) that if a third party made a claim Alamy would work with the contributor to defend. Now I fear that they might simply pass the buck....
3. The decreasing licence revenue and % commission mean it's not worth the risk

 

Mark

 

My thoughts too. That applies to my current portfolio. Add in the fact that uploading more images would be done at an effective hourly of about a pound. I just can't see much point in taking the risk.

[sb photos]

On 18/06/2021 at 16:44, Steve F said:

 

Exactly. Companies generally don't sue people with no money (i.e. general members of the public). It's not worth it and bad publicity.

That has always been my understanding too.

[Abiyoyo]

On 18/06/2021 at 16:44, Steve F said:

 

Exactly. Companies generally don't sue people with no money (i.e. general members of the public). It's not worth it and bad publicity.

Even more if the sued person lives in a country very difficult to get something. I am thinking to move to Russia, China, or even North Korea.