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Posted (edited)

Well at the risk of getting things wrong again, I have applied my weary mind to trying to understand Section 4 of the contract which is the main part related to licensing (not the exclusivity stuff which is a separate issue). The main conclusion I am coming to is that not a lot that is actually important has really changed from previous versions of the contract in relation to licensing (apart from exclusivity). The confusion arises from the splitting and renumbering of Clause 4.4 in the previous contract and the renumbering and rewording of Clause 4.7. Now I have not read each bit in forensic detail but there does not look to a major difference. The wording is very similar. Please correct me if I am wrong. 

 

Is there anything to worry about in relation to licensing? I don't know.

Is there anything to worry about that I should not have been worrying about last week? Possibly or even probably not.

Did I ever read the previous contracts in detail? Not for years I have to admit. 

Can we apply restrictions? It looks like that has not changed from previous versions. I am making a lot more of my images editorial only to be on the safe side. 

Am I leaving Alamy? Not just yet but I would really appreciate a simple explanation from Alamy of any significant changes to Section 4

 

Edited by MDM
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1 hour ago, Sultanpepa said:

 

Just remember that by remaining after the 31st May you will have been deemed to be accepting of the new contract. 

 Have I misread something. Don't we have 45 days until June 30th? 

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Posted (edited)

So I've restricted sales of pretty much all my images on Alamy yesterday, and today they've sent me an e-mail asking if I could lift the restriction on an image because someone wants to buy it. That was fast. Unfortunately as a Gold contributor not worthy of the 50% commission 25k elite, I don't feel my consent is really valued by Alamy, sadly.

Edited by Nathaniel Noir
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3 minutes ago, MDM said:

Well at the risk of getting things wrong again, I have applied my weary mind to trying to understand the section4 of the contract which is the main part related to licensing (not the exclusivity stuff which is separate. The main conclusion I am coming to is that not a lot that is actually important has really changed from previous versions of the contract in relation to licensing (apart from exclusivity). The confusion arises from the splitting and renumbering of Clause 4.4 in the previous contract and the renumbering and rewording of Clause 4.7. Now I have not read each bit in forensic detail but there does not look to a major difference. Please correct me if I am wrong. 

 

Is there anything to worry about in relation to licensing? I don't know.

Is there anything to worry about that I should not have been worrying about last week? Possibly or even probably not.

Did I ever read the previous contracts in detail? Not for years I have to admit. 

Can we apply restrictions? It looks like that has not changed from previous versions. I am making a lot more of my images editorial only to be on the safe side. 

Am I leaving Alamy? Not just yet but I would really appreciate a simple explanation from Alamy of any significant changes to Section 4

 

 

 

 

the other thing that has changed is the adding the "automatic infringement actions" by Alamy, and that if in these actions actions are taken against them we are responsible, with no check first. 

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33 minutes ago, M.Chapman said:

Clause 4.1.5

 

Clause 4.1.6

Contributor warranties, representations & obligations

You warrant and represent that:

4.1.6 any use or exploitation of the Content by Alamy, a Customer or a Distributor will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, indecent, vulgar or violate publicity rights anywhere in the world.

 

How can the contributor possibly warrant that one of Alamy's customers is not going to use an image (for which Alamy granted the licence terms) in a way that won't be deemed indecent, obscene, defamatory etc. anywhere in the world. It's just ridiculous.

 

Alamy, please remove this nonsensical clause.

 

Mark

 

Clause 4.1.6 is ridiculous and completely unrealistic. If I say the Earth is 4.55 billion years old I will probably offend someone's religious beliefs. OMG. 😇

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1 minute ago, Nathaniel Noir said:

So I've restricted sales of pretty much all my images on Alamy yesterday, and today they've sent me an e-mail asking if I could lift the restriction because someone wants to buy it. That was fast. Unfortunately as a Gold contributor not worthy of the 50% commission 25k elite, I don't feel my consent is really valued by Alamy, sadly.

especially since it is likely the sale would not be reported before the change, and therefore would be under the new amended contract.

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1 minute ago, meanderingemu said:

 

 

 

the other thing that has changed is the adding the "automatic infringement actions" by Alamy, and that if in these actions actions are taken against them we are responsible, with no check first. 

 

Yes but that is about exclusivity which I was excluding from what I wrote.

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Just now, MDM said:

 

Clause 4.1.6 is ridiculous and completely unrealistic. If I say the Earth is 4.55 billion years old I will probably offend someone's religious beliefs. OMG. 😇

as i joked in another thread, image spamming offends me so i will be making claims against said contributors. 

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1 hour ago, Cryptoprocta said:

What will they do about people who don't adhere to this clause?

"4.4. You will ensure that all Metadata including, without limitation, any and all other information pertaining to the Content: (i) is and will remain accurate and factually correct; (ii) does not infringe the copyright or any other third party right; and (iii) is not indecent, obscene, pornographic defamatory or otherwise unlawful."

... given the huge number of files which are not accurately labelled or tagged?

 

A lot of people who took a photo in Costa Rica dump every other Central American country into the keywords.  A fraction of birds of prey are mislabeled.  First page of cichlids has one photo of blueberries and no fish and one of a salt water butterfly fish labeled as a freshwater Lake Malawi cichlid, no species name given.   There's a Blue Tang on the  second page and that contributor has other mis-labeled salt water fish.   Page 2 also has multiples parrot fish tagged as cichlids, page three has a New World Ancistrus catfish labeled as an African catfish that lives in Malawi, and more parrot fish. 

 

 

 lago-malawi-cichlid-PBXATX.jpg

 

This doesn't help Alamy and there's apparently no mechanism for fixing it.   I think we remember the mis-labeled parrot. 

 

 

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5 minutes ago, MDM said:

 

Clause 4.1.6 is ridiculous and completely unrealistic. If I say the Earth is 4.55 billion years old I will probably offend someone's religious beliefs. OMG. 😇

 Your earlier statement was that "not a lot that is actually important has really changed from previous versions of the contract in relation to licensing (apart from exclusivity). But where was the new clause 4.1.6 in the previous contract? 

 

This is just one example. I think it's important that we are accurate in statements such as saying that the new contract is much the same as the previous one. It doesn't look to me like it is as there are additions that have been put in for a reason and it's important that we know what the implications are of those new clauses.

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7 minutes ago, Nathaniel Noir said:

So I've restricted sales of pretty much all my images on Alamy yesterday, and today they've sent me an e-mail asking if I could lift the restriction on an image because someone wants to buy it. That was fast. Unfortunately as a Gold contributor not worthy of the 50% commission 25k elite, I don't feel my consent is really valued by Alamy, sadly.

 

Given that one of the requesters claimed to be getting clearances from a third party, I would seriously not want to be remotely involved with this unless I was approaching people I'd photographed that I knew to ask for releases for C$100.  I'd also need to know that the pay to me was going to be more than $.   And that Alamy has an ironclade contact with the ...client to make sure to protect Alamy and me against claims or legal action for forgery if that's what is being provided, which is far more likely than having someone find a Nicaraguans to go out and get releases.     Other factors, like the use of my 2018 photographs for propaganda ads, make this an absolute no for me.

 

 

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18 minutes ago, Nathaniel Noir said:

So I've restricted sales of pretty much all my images on Alamy yesterday, and today they've sent me an e-mail asking if I could lift the restriction on an image because someone wants to buy it. That was fast. Unfortunately as a Gold contributor not worthy of the 50% commission 25k elite, I don't feel my consent is really valued by Alamy, sadly.

 

after 30th June - the new contract means Alamy doesn't need your consent they can just make the sale - they will of course still seek your consent as it minimises their risk and puts it all on you 

 

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Just now, Foreign Export said:

 

after 30th June - the new contract means Alamy doesn't need your consent they can just make the sale - they will of course still seek your consent as it minimises their risk and puts it all on you 

 

 

Yes, I'm with you, although by that time I think we should have enough clarity from Alamy on the changes for me to decide if I'm in or out and in what capacity. Restriction is a temporary measure, as we are still waiting to hear from them.

 

As per other posters on this thread who also got enquiries to lift restrictions, they have also mentioned that they've advised the client that they will need to clear any 3rd party rights, but of course as we know, that all goes away with the new contract.

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Posted (edited)
25 minutes ago, Keith Douglas said:

But where was the new clause 4.1.6 in the previous contract? 

It wasn't there (well I can't find it anyway). For reference the previous contract is available here

https://web.archive.org/web/20210502020513/https://www.alamy.com/terms/contributor.aspx

 

Clause 2.5 (in both old and new contracts) contains some similar elements relating to the image itself. Whereas the key thing about the new Clause 4.1.6 is that it places obligations on the contributor for usage of the image.

 

Mark

Edited by M.Chapman
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Posted (edited)
52 minutes ago, Keith Douglas said:

 Your earlier statement was that "not a lot that is actually important has really changed from previous versions of the contract in relation to licensing (apart from exclusivity). But where was the new clause 4.1.6 in the previous contract? 

 

This is just one example. I think it's important that we are accurate in statements such as saying that the new contract is much the same as the previous one. It doesn't look to me like it is as there are additions that have been put in for a reason and it's important that we know what the implications are of those new clauses.

 

I think that 4.1.6 is ludicrous and doesn't require serious consideration. I hope I have not offended anyone in saying that. 

 

EDIT: Just to add that what I said is my general impression rather than a forensic legal analysis, of which I am neither capable nor qualified. For me some of the language used in the contract seemed very forceful but, when I read the previous contract and earlier, similar or the same language was used. I am not suggesting to anyone to accept the new contract and I am awaiting input from Alamy here. 

Edited by MDM
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Posted (edited)
7 minutes ago, Nathaniel Noir said:

 

Yes, I'm with you, although by that time I think we should have enough clarity from Alamy on the changes for me to decide if I'm in or out and in what capacity. Restriction is a temporary measure, as we are still waiting to hear from them.

 

As per other posters on this thread who also got enquiries to lift restrictions, they have also mentioned that they've advised the client that they will need to clear any 3rd party rights, but of course as we know, that all goes away with the new contract.

 

But actually I know that this image has already been published on the client's site, so that is rather dodgy, can they actually do that?

Edited by Nathaniel Noir
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Posted (edited)
7 minutes ago, MDM said:

I think that 4.1.6 is ludicrous and doesn't require serious consideration.

 

Do you mean that you think this clause is so ludicrous it couldn't possibly be enforced, and hence we can accept the new contract without worrying about that clause? (Providing the rest of the contract is acceptable of course).

 

Mark

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58 minutes ago, M.Chapman said:

Another item that Alamy provide is a model release, which states

 

I hereby give the Photographer and Assigns my permission to license the Images and to use the Images in any Media for any purpose (except pornographic, defamatory, libellous or otherwise unlawful)

 

So, when a model signs an Alamy approved model release they are placing obligations on me and Alamy - so we must then include similar terms in any contract of sale / licence terms. This "flow of legal obligation" needs to be recognised in the Contributor Contract. Ideally Alamy's obligations section should state that Alamy will include suitable restrictions in the contract of sale / licence terms so that Alamy AND the contributor are protected.

 

Mark

Which obviously conflicts with the new contract:

"4.1.7. where you have indicated that a Model Release is available: (i) the Release is legally binding; (ii) your representation that a Release is available is true and accurate; (iii) (except as otherwise notified to Alamy via the System) the Release allows the Content to be used for all uses anywhere in the world without restriction including without limitation uses in relation to sensitive issues; (iv) you hold all permissions needed for the exploitation by third parties of the Content, including, without limitation, from subjects, depicted in the Content and/or original clients for whom the Content may have been created. and (v) any use or exploitation of the Content by Alamy, a Customer or a Distributor will not violate the rights of any model depicted in the Content, including without limit, any privacy or publicity rights anywhere in the world."

Again, I have to wonder what Alamy is intending to use the content for, that they have to pre-pardon themselves.

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Posted (edited)
25 minutes ago, M.Chapman said:

 

Do you mean that you think this clause is so ludicrous it couldn't possibly be enforced, and hence we can sign the contract without worrying about it?

 

Mark

 

Yes (depending I guess on the content of your images). I think it is very poorly considered. I guess it is intended to cover stuff like nudity or soft porn but how could one possibly know who would be offended and by what. That is why I gave the geological example. It could be anything. 

 

EDIT - I think if I had images that might be likely to cause offence to someone then I might be more cautious.

Edited by MDM
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5 hours ago, MizBrown said:

 

Just sent my termination email.  The water is too hot.  I looked at Patreon and that might be a better fit for me given that I write and take photographs.  Been real, I suppose.  I will miss the camaraderie of the forum.  Mostly, y'all are wonderful people.   I'm OreInNicaragua on Twitter. 

 

Buena suerte MizBrown. 

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The difference between $250. a year and $25,000. is a lot.. anyone here at the Platinum level? It will be a struggle for me to continue at the Gold level... sigh!

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RM vs RF licenses.... Somewhere in the contract is some text allowing a lot of leeway in license details that can be controlled by Alamy. In my case, all of my images on Alamy are specified RM. I have an RF exclusivity contract with another agency. So, Alamy CANNOT license any of my RM defined images as converted to an RF license. To sell my RM supplied images as RF would cause me a lot of contractual problems and take me directly to a decision fork in the road to bail out of agencies and/or contracts. In my case, a very loose RM license could be (undesirable, but) accepted by me. An RF license sale would break the spirit of my RM submissions to Alamy. I've been a contributor to Alamy since about 2003 - don't mess me up now!

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3 hours ago, Betty LaRue said:

The problem is that even though you properly marked your images with no release available, that doesn’t matter if someone frivolously makes a claim against you. Even though it probably will be dismissed in a court of law, you still might have to spend some money for your attorney to file for dismissal and then attend the hearing. Anytime lawyers are involved, it cost a lot per billing hour.

 I can’t afford that. Can you?

 

Plus, it might not even be in your own country, and international lawyers are even more expensive, and you may not be able to claim back your expenses, depending on the legislation.

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55 minutes ago, MDM said:

 

Yes (depending I guess on the content of your images). I think it is very poorly considered. I guess it is intended to cover stuff like nudity or soft porn but how could one possibly know who would be offended and by what. That is why I gave the geological example. It could be anything. 

 

EDIT - I think if I had images that might be likely to cause offence to someone then I might be more cautious.

What if an end user takes one of your editorial images and photoshops a person into an offensive situation, puts a head on a body, goodness knows what we can't even imagine, but someone else can.

The contract claims that the end user is not liable. Who is the person going to come after? Do you really have the time, money and emotional resources to waste on fighting, when Alamy's contract is weighted against you?

In these cases, 'thinking' that a clause means what you hope it means is like crossing your fingers.

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