Contract Change 2021 - Official thread

[Michael Photo]

You reach a point where you are no longer willing to put up with being taken advantage of.

Edited May 23, 2021 by Michael Photo

[Keith Douglas]

17 minutes ago, geogphotos said:

 

 

Not exactly what you wrote about but on the same tangent.

 

There are obviously huge problems in doing something like this which is why so many attempts at creating a co-op agency have failed. I was involved in the every early stages of one that ended up being called Picade.  I am not even going to try and list the obvious problems relating to differences of opinions, funding, but crucially marketing,

 

A very simple practical problem is that all the platforms such as Photoshelter are for individuals. They do offer an agency option but I guess it is $1000 or month and more.

 

The short cut way of doing it would be to find an established agency that had everything in place and could do the marketing and selling and which wanted a large input of new images. But as with all of these ideas it soon hits the wall because of the level of pricing that prevails for most imagery. 

 

I don't think that portfolio size is what matters, more the niche, specialist quality - and for that there are agencies that already exist but they are choosy.

 

Let's not forget that Alamy and the other mega portals have wiped out a very large number of small specialist agencies. Very little remains and for good reason - the same fundamental reason that really limits the idea of a photographer start-up agency.

With the continual fall of prices I don't think there's any possibility of setting up a new, successful agency from scratch to sell general stock. I doubt that there's much chance of setting up one with a specialist niche either, unless it is very targeted and contains images that are very difficult to produce and where specialised access is needed so that the images can command a premium. So that's not going to fit the majority of individual Alamy contributors.

 

I am very critical of what Alamy have done around the contract, and the way they have gone about it. My criticism almost all relates to Alamy shifting the risks onto the contributor. I can understand why they want to do away with the exclusivity premium (nobody can doubt that that is their intention) and why they want to simplify things. They want to reduce the commission they pay to contributors and this won't be the last reduction I'm sure. I can accept that because that is the way the market is heading.

 

It's just put a spotlight on the fact that for the vast majority of contributors, selling stock images barely generates any net income, and if it does generate any the equivalent hourly rate of the work required is way below the minimum wage. When I started 8 years ago it looked possible, with some hard work,  to generate a reasonable, steady income. I don't think that's the case today. And the agency is asking the contributor to shoulder risks that are outside their control and that could wipe out all their income and more in a single lawsuit.

[KevinS]

Keith Douglas wrote;

"And the agency is asking the contributor to shoulder risks that are outside their control and that could wipe out all their income and more in a single lawsuit."

 

For this reason, mainly, as well as the commission change, I won't be accepting the new contract. 

[MizBrown]

Just now, KevinS said:

Keith Douglas wrote;

"And the agency is asking the contributor to shoulder risks that are outside their control and that could wipe out all their income and more in a single lawsuit."

 

For this reason, mainly, as well as the commission change, I won't be accepting the new contract. 

 

I thought that was more significant than the commission change.  And given the tendency of all factions here to abuse Photoshop and Sony copyrights (one campaign song here), nope, nope. 

 

[MDM]

1 minute ago, MizBrown said:

 

And given the tendency of all factions here to abuse Photoshop

 

 

What does this mean ???? Are you suggesting everyone here abuses Adobe licensing. I've had a legal licence for Photoshop since 1997. 

[Bill Brooks]

4 hours ago, Nodvandigtid said:

Will that was the week that was, although I still find it a tad ironic that the topic above this thread for the majority of the last six days is entitled "The importance of being accurate with marking images as “Exclusive to Alamy.”!

 

I logged in last Monday, 13 years to the day that I joined Alamy. Above the dashboard sat an ominous warning that a new contributor contract would be coming into force from July 2021. I read Emily Shelley's words about why the change to commission was, in her eyes, necessary along with the comments on exclusivity and the and the new infringement team.

 

In a former life, I worked for a company that derived its income through agents/intermediaries.30% of the agents supplied roughly 70% of the business and of course the other 70% of the agents only supplied 30% of the income. Filter in costs, upkeep etc and it was obvious what had to happen and it did,

 

It is a similar position that most contributors here on the forums now find themselves in. Whenever Alamy backtracked on the commission cut to 40% in return for being exclusive at 50%, one of the questions I asked James West, was that would he confirm that all contributors regardless of size would have their commission reduced to 40%. (the original proposal). For obvious reasons it was the only one of the questions he didn't answer when he replied to me.

 

There is an old saying; “if it smells like b******* then it is b*******” and Emily Shelly's message made it clear to me that the new PA/Alamy outfit does not have a positive outcome for individual contributors going forward. To compare the initial trading period of this year with the start of the pandemic last year and and pronounce a wonderful 45% growth figure really is an insult to most people's intelligence.

 

To then rub further salt into the wound, when a great number of us spent hours and hours going through and checking that our images were in fact exclusive by saying that a “significant minority” (what exactly does that mean in real numbers?) had images which weren't exclusive shows a lack of leadership because the offenders could easily have been dealt with.

 

The smoke though began to thicken whenever it it became clear that the new “infringement team” would be chasing only exclusive images, and of course there was no detail on what ultimately you or I, the contributor, could expect to get. Many of you have pointed out that this is likely to be similarly cloaked as the “DACS” system administered by Alamy - where we have no idea of the true value of the payments that Alamy may collect on our behalf in relation to what is ultimately paid out to us.

 

I would say it's fair comment that this infringement team will be pushing hard to get as much as they can (the parties to the deal – the rights chasing company and Alamy will set an incentivised contract aiming for that) and a small residue, possibly no more than on a normal licence fee after commission, will be made available to contributors.

 

When you see, as revealed on this thread by PA/Alamy, the small proportion of overall images that are actually marked as “exclusive” with Alamy, any plans for exclusiveness to benefit both PA/Alamy and contributors is a long way off, meantime it's about squeezing as much money out of images marked as exclusive..

 

I joined Alamy in 2008, I struggled in the early years with software, but since 2015, I have put extensive hours time and resources into building up a portfolio of just over 17000 images. At that time I started keeping tabs on this forum, and watched the likes off Sally Anderson (well done Sally – a prodigious output with growing sales) and Andy Gibson (living in the wonderful world of West Cork, a man selling Live News in increasing volumes via Alamy) start pushing their work through Alamy.

 

And the reality as has been clearly said on these forums is you need to be uploading regularly to make sales. In the last few years, I have earned enough to mean my average over the full 13 years of contributing is safely above the $250 figure, however there is not a snowball in hell's chance of me getting anyone here $25,000.

 

Would my collection be missed? Well the answer to that in the context of PA/Alamy's plans would be an obvious “No” (although some buyers might wonder where I have gone before commercial amnesia would set it in).

 

You will all have seen that PA/Alamy has sucked in a huge range of images from PA Media, Thomson Reuters, the Independent, and others.

 

I often wondered what PA Media paid for Alamy - please don't go to the end just yet - and whether or not what PA Media was in fact a suitable suitor for Alamy. The answer as far as the individual contributor is concerned is probably going to be “no“ over the next few years, and in fairness if any of us were sitting as the managing director of PA/Alamy and had access to the relevant data then we might come up with a similar conclusion on the way forward. That of course depends as well on what your future strategy for the business is is, and clearly agencies, (despite a small few uploading some dross, low quality images, uploaded without relevant keywords and impunity), many of whom are “connected” to PA Media will rule the day.

 

It suits both PA/Alamy and PA Media partners to get the highest rate of commission, and for the rest of us to continue perhaps staying on at a lower 40%, until the next commission cut comes along.

 

The Chief Executive of PA Media Group Limited is Clive Marshall, you may want to write to him as well, but for example, included in the 27 shareholders that own PA Media, are Century Newspapers Limited, Scottish Daily Record and Sunday Mail, Daily Mail and General Holdings, Trinity Mirror PLC, The Irish Times, DC Thomson and Co Ltd, and Guardian Media Group PLC – a formidable bunch of businesses.

 

Can PA Media's purchase of Alamy mean that it can continue to pay the highest rate to many of its related or associated companies? I also suspect that the purchase was to enable PA Media etc to benefit the greatest from pushing out images to different international markets that they had not previously great access to.

 

I could live with 40% commission if push came to shove, but what I cannot live with are the onerous terms and conditions that will be part of the the contributor contract from July.

As many of you have pointed out there are inaccuracies in there, some of you have referred to “contra proferentem” where if there is a dispute between the contract parties regarding wording interpretation, that it goes against the party who drafted it.

 

However that is definitely something that none of us should rely on; any legal action is expensive, and you or I have to weigh up the risk of that happening and if it does the financial implications and other implications under the terms of the contract.

 

In that former life, I had some dealing with indemnity clauses and legal liabilities, and I am glad to see that Keith Douglas for one has highlighted the the indemnity clause number 5, Look at the amount of additional liabilities imposed on the contributor.

 

Hold harmless agreements are nothing new, but the extent of them can vary, I have always checked the contributor contract at each update to know what the risk to me is is. Before you get into all the other problems regarding licensing exclusivity, model releases, and everything else, I do feel you really need to look at clause 5 and see whether or not you are prepared to live with that.

 

This is a kind of clause I would have seen many years ago where basically all the onus is put on to to the party signing up to the contract, There are other more acceptable versions used, where, for example, PA/Alamy would be responsible for the problems it causes, and you are I would be responsible for what we caused as contributors, and that is something which would be more amenable to most people.

 

I feel the new clauses shift a huge burden (including things well beyond the control of the contributor) onto the contributor. I suspect the practical reason for this is simply down to whoever reviewed the contract doing what I would term as “a belt and braces job” to make sure that they are protecting PA/Alamy to the fullest extent.

 

You will have seen in at least one of the PA/Alamy replies about what the intention of some clauses are (from a PA/Alamy perspective). The intention is irrelevant; unless you have personally got a written agreement or side contract making it clear that you are not responsible for certain things, then if a case goes to court you are bound by the terms of the contract and the way that they will be interpreted by a judge.

 

Quite simply the the financial implications of that are hugely worrying. PA/Alamy having paid their legal team to to devise these “new” terms and revise the contract, will not be back tracking on it,

 

The agencies, or most of them, will be able to pay for the relevant level of risk mitigation via insurance (professional Indemnity or legal expenses) and in some cases the agency will have the financial resources to more than easily cover it.

 

I cannot see the contract being changed so it looks like I am heading out an exit door soon, I would like to thank everyone for their contributions on the forum of the last number of years. Although I haven't posted, I have been on several times daily and I've got to know a great deal about many of you and found your experience and information provided helpful, I wish all of you well in the future.

 

In relation to my earlier question about how much PA Media paid for Alamy, here's an extract from the PA Media Group accounts up to the 31 December 2019.

 

“In February 2020, the Group purchased 100% of the share capital in Alamy Limited, a provider of stock images. Cash consideration paid on acquisition was £32.6m. Deferred consideration of £9.2m to be paid in February 2021 and £4.6m to be paid in February 2022”

 

Sleep well Messrs West and Fischer.

 

 

This really sums it up. Everyone should read it. I wish I had the same depth polish and breadth as this poster.  I would keyword it as enlightened,  informed, aware, educated, knowledgeable, learned, wise, literate, intellectual, tutored, illuminated, apprised; civilized, refined, cultured, cultivated, sophisticated, advanced, developed, liberal, open-minded, broad-minded. 

 

Thanks Nodvandigtid

[DJ Myford]

20 minutes ago, MDM said:

 

What does this mean ???? Are you suggesting everyone here abuses Adobe licensing. I've had a legal licence for Photoshop since 1997. 

I think MizBrown is talking about the political situation in their country of residence, not anyone on Alamy.

[Bill Kuta]

I just sent in my termination email, but got an "undeliverable" response.

 

Annddd...a Sunday sale just showed up, mid $$, an older "well this'll never sell but I'll submit it" image.

Edited May 23, 2021 by Bill Kuta

[John Mitchell]

I read Nodvandigtid's recent post. It is indeed very well-written, not to mention worrisome. However, as someone who knows very little about legal matters, I can't help wondering how different and more onerous (legally speaking) is Alamy's new contract compared to those of other large stock photo agencies. Without mentioning the names of specific agencies, can anyone with experience comment on this?

[John Mitchell]

4 hours ago, MizBrown said:

 

How much does it cost to form an agency in the UK?   Some of the people with the larger portfolios (over 10K) might want to consider doing that which might allow you collectively to get a better contract with Alamy or to be able to afford insurance against legal expenses, and I believe agencies are allowed to set minimum prices in the new contract.   It worked for a number of photographers from 1947 to the present.

 

Best wishes for the people who did put so much work into these portfolios and to the people with smaller specialized ports who seemed to be making repeat sales with them, whether it's with Alamy or not.

 

 

 

If memory serves, at one time, PhotoShelter used to allow individual subscribers with similar interests to join together to form "virtual stock agencies." I thought it was a very innovative idea and joined a couple myself. Unfortunately, it fizzled big time.

[MizBrown]

1 hour ago, MDM said:

 

What does this mean ???? Are you suggesting everyone here abuses Adobe licensing. I've had a legal licence for Photoshop since 1997. 

 

In Nicaragua.   We've got elections coming up and during the mess in 2018, we had people Photoshopping a tank in the streets of Leon, a video of a "murdered girl" who apparently answered her phone on the compete video.   One US political party also used stock photos and claimed they were various people who'd had objections to the other party's policy. 

 

I took photos of events in 2018 and was very careful to caption them neutrally.

 

Abusing Photoshop -- using it to make inflammatory composite photos. 

 

 

[Brian Yarvin]

3 minutes ago, MizBrown said:

 

One US political party also used stock photos and claimed they were various people who'd had objections to the other party's policy. 

 

Miz, while this has happened in the USA, it first happened in Canada. Since then, political parties all over the world have used stock images to make their points. It's one of several reasons I no longer do lifestyle work. 

[Nodvandigtid]

30 minutes ago, John Mitchell said:

I read Nodvandigtid's recent post. It is indeed very well-written, not to mention worrisome. However, as someone who knows very little about legal matters, I can't help wondering how different and more onerous (legally speaking) is Alamy's new contract compared to those of other large stock photo agencies. Without mentioning the names of specific agencies, can anyone with experience comment on this?

Hi John,

 

Unfortunately I cannot answer that because about 99% or more of my images here at Alamy are genuinely exclusive to it.

I suspect there will be equally onerous contract terms out there with some stock agencies  and less onerous contracts with some others. It is up to us all individually to decide what we can accept and the risk a contract poses. 

Just for clarity here is how clause 5.1 of the Alamy contract is changing - Alamy have made this clear but  I have reformatted the wording and spread it out over more lines simply to make each sub-point separate for comparison purposes.  

 

 

Existing contract up to and including 30/06/21

 

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.

 

 

New contract from 01/07/21

 

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 rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity;

 

2. any use, exploitation or distribution of the Content by the Indemnified Parties;

 

3. any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and

 

4. 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.

 

 

 

 

[Nodvandigtid]

1 hour ago, Bill Brooks said:

 

This really sums it up. Everyone should read it. I wish I had the same depth polish and breadth as this poster.  I would keyword it as enlightened,  informed, aware, educated, knowledgeable, learned, wise, literate, intellectual, tutored, illuminated, apprised; civilized, refined, cultured, cultivated, sophisticated, advanced, developed, liberal, open-minded, broad-minded. 

 

Thanks Nodvandigtid

Many thanks for your kind words Bill.

All the best going forward. 

[MizBrown]

3 minutes ago, Brian Yarvin said:

 

Miz, while this has happened in the USA, it first happened in Canada. Since then, political parties all over the world have used stock images to make their points. It's one of several reasons I no longer do lifestyle work. 

 

Yeah, I wonder if my released selfie that sold for a little over a dollar will show up in some way that I'm politically opposed to. 

[Brian Yarvin]

7 minutes ago, MizBrown said:

 

Yeah, I wonder if my released selfie that sold for a little over a dollar will show up in some way that I'm politically opposed to. 

 

Back in the eighties, a whale shoot I did off Cape Cod was used to promote whaling in Japan. It happens.

Edited May 23, 2021 by Brian Yarvin

[John Mitchell]

19 minutes ago, Nodvandigtid said:

Hi John,

 

Unfortunately I cannot answer that because about 99% or more of my images here at Alamy are genuinely exclusive to it.

I suspect there will be equally onerous contract terms out there with some stock agencies  and less onerous contracts with some others. It is up to us all individually to decide what we can accept and the risk a contract poses. 

Just for clarity here is how clause 5.1 of the Alamy contract is changing - Alamy have made this clear but  I have reformatted the wording and spread it out over more lines simply to make each sub-point separate for comparison purposes.  

 

 

Existing contract up to and including 30/06/21

 

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.

 

 

New contract from 01/07/21

 

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 rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity;

 

2. any use, exploitation or distribution of the Content by the Indemnified Parties;

 

3. any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and

 

4. 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.

 

 

 

 

 

Thanks for your reply. I wish I were more literate in these matters. Even with my limited understanding, I can see that the new clause appears to take some quantum leaps when it comes to shifting liability to contributors.

 

 

Edited May 23, 2021 by John Mitchell

[Andreas]

6 hours ago, Andreas said:

My current plan: mail contributor service to set all pics to: exclusive to Alamy = N, editorial only.  I was carefully in assigning correct metadata, but have to limit the risk.

And collect my better future shots in order to have sufficient material to apply elsewhere, luckily still some options exist. If by whatever means (less sales or changed levels) my share is reduced to 20% I'll quit.

Send my mail, error:

"contributors@alamy.com
The recipient's mailbox is full and can't accept messages now."

[MizBrown]

12 minutes ago, Brian Yarvin said:

 

Back in the eighties, a whale shoot I did off Cape Cod was used to promote whaling in Japan. It happens.

 

I wrote about Philadelphia male models being very upset about being used in local anti-AIDS/HIV ads which implied they were sex workers or needle drug users who had HIV.   But they'd signed releases.   

[MDM]

41 minutes ago, MizBrown said:

 

In Nicaragua.   We've got elections coming up and during the mess in 2018, we had people Photoshopping a tank in the streets of Leon, a video of a "murdered girl" who apparently answered her phone on the compete video.   One US political party also used stock photos and claimed they were various people who'd had objections to the other party's policy. 

 

I took photos of events in 2018 and was very careful to caption them neutrally.

 

Abusing Photoshop -- using it to make inflammatory composite photos. 

 

 

 

OK when you said here, I assumed you meant Alamy. What you are referring to is an abuse of the images or using them in a way that was not intended. That is quite different from abusing Photoshop. The meaning was obscure. 

[meanderingemu]

38 minutes ago, Brian Yarvin said:

 

Miz, while this has happened in the USA, it first happened in Canada. Since then, political parties all over the world have used stock images to make their points. It's one of several reasons I no longer do lifestyle work. 

 

Yeah i remember a Polish stock photographer finding with surprise his released image featuring his wife as model had been used in an anti-teacher attack campaign in Ontario. 

[MizBrown]

6 minutes ago, MDM said:

 

OK when you said here, I assumed you meant Alamy. What you are referring to is an abuse of the images or using them in a way that was not intended. That is quite different from abusing Photoshop. The meaning was obscure. 

 

Abusing Photoshop for me is using it to create fake pictures that some faction tries to pass as real.  I don't consider work-arounds to Adobe's political policies to be abuse.   I once reported myself to Adobe and they don't really care either as long as my US credit card is good.

 

 

 

Edited May 23, 2021 by MizBrown

[MizBrown]

Be curious to see before June 30 who stays and who goes. 

[Ollie]

All of my 30,000+ images are Exclusive to Alamy, except for those few falling under Alamy’s artificial definition requiring art works to be designated as non-exclusive. (They are not offered anywhere else, but Alamy’s definition of “Exclusive”  prevents them from being designated Exclusive.)  Alamy now asserts the right to pursue suspected infringements of Exclusive images without asking me, even though such images may have been legally licensed through other channels before they were withdrawn from other agencies and submitted exclusively to Alamy.  Leaving them as Exclusive subjects me to the risk of being charged legal fees (para 5.1) if Alamy seeks to collect for a suspected infringement and then discovers that the image was properly licensed.  Since the new fee schedule will only pay 50% commission to contributors achieving more than $25,000 in annual sales (a level I’m not likely to reach), what reason is there for continuing to designate any images as Exclusive to Alamy?  

[Ollie]

Among the most appalling provisions in the new contract is para 7.1:  Alamy agrees to use its reasonable commercial endeavours to grant Licences in accordance with your instructions. 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.

 

In other words, if Alamy or its Distributor allows an image to be licensed for commercial use when it was designated for Editorial use only, and then gets sued, it will not be held liable for its own mistakes.

 

We are repeatedly asked to warrant that we will hold Alamy harmless for any offensive use of an image by a customer over whom we have no control.  Even if we have committed no error, if someone initiates legal action because of offensive use of an image it will be costly to prove our own innocence.

 

It is hard to imagine how one can continue to be part of an organization that seeks to evade all responsibility and, moreover, shifts any negative financial consequences to the contributors who provide the lifeblood of the organization.