Contract Change 2021 - Official thread

[Ed Rooney]

Everything about this new contract has been discussed for 63 pages now. Still, there are one or two things I'm confused about. Okay, not 'one or two things' --many things. But here's the one that really bothers me:

 

If I changed from exclusive to non-exclusive and make sure all my images say Sell for Editorial Only, will that keep me safe from being sued for misuse by clients? 

 

Edo 🤨

[spacecadet]

15 minutes ago, Colblimp said:

f8?

An iris opening equivalent in diameter to one- eighth of the focal length of the lens.

[Skyscraperfan]

Even 50% commission are quite low. If you sell something on Ebay, you get 90% minus some fixed fees. If you publish a digital book on Amazon, you will get 70% of the price. Those 70% also apply to apps in the Play Store or App Store. Food deliveries still leave 70 to 80 percent to the restaurant. Uber leaves 80% for the drivers. Hotel booking portals leave about 85% for the hotel. In all those cases the fees of the websites are already quite high. 10 to 30 percent just for providing the platform, but only in the stock photo business the actual owners of the product or service (in this case the photos) usually get 50% or less. Why do photographers accept that? How is that business of selling a photo so much different from selling an e-book on Amazon or a product on Ebay?

I know that the stock photo business is very competitive, but we as photographers also carry enormous costs. Good photo gear costs a lot and travelling costs even more. Most of us are not making any profit from photography, but instead subsidize their expensive hobby with money they earned elsewhere. At the moment many of us are eying the transition to mirrorless cameras combined with new lenses and that can easily cost $10,000 or more. I wish Alamy would at last acknowledge the money that some of us put into their hobby, while others just take some photos with their cellphone, if they see something that might sell.

There are a few things I always like about Alamy. For example that it was possible to upload a photo without any release, even if one was needed. If someone licensed such a photo, it was their job to find out if they could use it. That way I sold many photos of skyscrapers, while at most other agencies a photo of a skyscraper without a release can't even be uploaded in the first place. I also love the Alamy offered 65% commission to photographers and promised, that would never change. I also liked that we were able to put very specific restrictions on images, but most of those options have gone now.

I do not really care how much I earn with my photos, as long as I get at least 50% of the actual price. That's why I way always loyal to Alamy and never joined Getty although photographers earn much more money via Getty even with 33% or lower commissions. Now I am even considering putting some of my images under a Creative Commons license or even donating them to Wikipedia. Then I would get 100% of $0. 

It reminds me when I had two tickets for a Depeche Mode concert. I had bought them for 107 Euros each, but was not able to use them. So I stood in front of the arena and tried to sell them. Unfortunatly the highest offer was 40 Euro per ticket. That was just 37.3% of the price I paid. It would have meant that I would still have paid 62.7% for the ticket while not getting to see a concert, while the person who bought the ticket paid 37.3% and got to see the concert. That felt unfair to me and so I decided not to sell those tickets at all, even if that meant losing the whole 214 Euros. Sometimes having principles is expensive and if all had those principles, nobody would have to sell a 107 Euro ticket for 40 Euros and nobody would have to accept less than 50% commission for a stock photo.

[BobD]

11 minutes ago, Ed Rooney said:

Everything about this new contract has been discussed for 63 pages now. Still, there are one or two things I'm confused about. Okay, not 'one or two things' --many things. But here's the one that really bothers me:

 

If I changed from exclusive to non-exclusive and make sure all my images say Sell for Editorial Only, will that keep me safe from being sued for misuse by clients? 

 

Edo 🤨

 

It's not just being sued by clients that's the problem.

If a publisher  or Alamy gets sued, they can then pursue you for their legal costs. That's my understanding anyhow.

[Martin P Wilson]

17 minutes ago, Ed Rooney said:

Everything about this new contract has been discussed for 63 pages now. Still, there are one or two things I'm confused about. Okay, not 'one or two things' --many things. But here's the one that really bothers me:

 

If I changed from exclusive to non-exclusive and make sure all my images say Sell for Editorial Only, will that keep me safe from being sued for misuse by clients? 

 

Edo 🤨

 

Quite simply, NO!

[Ed Rooney]

😜🤪🤪😜🤪

[Cryptoprocta]

3 minutes ago, Ed Rooney said:

😜🤪🤪😜🤪

That would seem to be a good represenation of PA's view of the contributors.

 

C'mon PA, get a better-written, better thought-out contract, in Plain English and unambiguous.

[meanderingemu]

3 minutes ago, Cryptoprocta said:

That would seem to be a good represenation of PA's view of the contributors.

 

C'mon PA, get a better-written, better thought-out contract, in Plain English and unambiguous.

 

which is actually what i retain of the last week.  Commission changes, modifying clauses against end user are things that will always happen- and easy to make a decision, but the complete apparent unpreparedness to a communication strategy of the changes is appalling.  It took a whole week to come in and say "what is written is not what we intend but we will leave it like that".  That's all we got.  No explanation, no control of message, no discussion, and a bunch of "don't let the door hit you on the way out" e-mail back to longer time contributors who are leaving. "

 

 

[Colblimp]

46 minutes ago, spacecadet said:

An iris opening equivalent in diameter to one- eighth of the focal length of the lens.

Well, yeah, but in this context?

[NYCat]

7 minutes ago, Colblimp said:

Well, yeah, but in this context?

 

I think you probably know this but... https://en.wikipedia.org/wiki/Ƒ/8_and_be_there

 

Paulette

[Richard Tadman]

55 minutes ago, Ed Rooney said:

Everything about this new contract has been discussed for 63 pages now. Still, there are one or two things I'm confused about. Okay, not 'one or two things' --many things. But here's the one that really bothers me:

 

If I changed from exclusive to non-exclusive and make sure all my images say Sell for Editorial Only, will that keep me safe from being sued for misuse by clients? 

 

Edo 🤨

 

I still have considerable reservations about the legitimacy of what Alamy is attempting to do and doubt that it is enforceable in law.
Alamy is responsible for selling our images and contracting with the customer. We submit images that for the most part (indecency etc. aside) have no inherent existence until they are used and published. The image only becomes, racial/offensive or whatever when given a context and that is out of the control of the photographer. 
I'd be very surprised if a court reached any conclusion other than it was an "Unfair Contract terms" exclusion that was unenforceable.

[Taina]

1 hour ago, Ed Rooney said:

Everything about this new contract has been discussed for 63 pages now. Still, there are one or two things I'm confused about. Okay, not 'one or two things' --many things. But here's the one that really bothers me:

 

If I changed from exclusive to non-exclusive and make sure all my images say Sell for Editorial Only, will that keep me safe from being sued for misuse by clients? 

 

Edo 🤨

No. 

[spacecadet]

2 minutes ago, Richard Tadman said:

 

I still have considerable reservations about the legitimacy of what Alamy is attempting to do and doubt that it is enforceable in law.
Alamy is responsible for selling our images and contracting with the customer. We submit images that for the most part (indecency etc. aside) have no inherent existence until they are used and published. The image only becomes, racial/offensive or whatever when given a context and that is out of the control of the photographer. 
I'd be very surprised if a court reached any conclusion other than it was an "Unfair Contract terms" exclusion that was unenforceable.

Yes, but we don't want to get as far as  court. Being innocent is very expensive.

[Mr Standfast]

1 hour ago, spacecadet said:

You're f8 and be there, though.

f5.6 is the new f8...

[Cryptoprocta]

10 minutes ago, Richard Tadman said:

 

I still have considerable reservations about the legitimacy of what Alamy is attempting to do and doubt that it is enforceable in law.
Alamy is responsible for selling our images and contracting with the customer. We submit images that for the most part (indecency etc. aside) have no inherent existence until they are used and published. The image only becomes, racial/offensive or whatever when given a context and that is out of the control of the photographer. 
I'd be very surprised if a court reached any conclusion other than it was an "Unfair Contract terms" exclusion that was unenforceable.

I totally agree, but I don't have the time, money or emotional energy to be the test case.

[AndrewP]

I’m trying to understand the practical realities of the indemnity clause.

As a fictitious example: I photograph a street scene of some houses in a quaint village and state that there is property in the image and that I don’t have a release. A mortgage company uses the photo in an advert and the owner of one of the houses claims for damages from the mortgage company, who then contact Alamy saying they’ve done nothing wrong (when they clearly have in publishing without a release).

Are Alamy really just going to pass on my details to the owner of the house and say “you’re on your own with this”? Surely a valid claim can only be made against the company that published the photo without a required property release in place? If I’ve annotated things correctly then I can’t be held responsible for the actions of others. Buyers also have a contract to agree to when purchasing.

If however I had stated there was no property in the photo and a release was not required then I can see I would be leaving myself open to claims and Alamy would pass responsibly on to me to sort out.

There have been previous instances were content has been in dispute with the property owners such as photographing on UK railway stations a few years back, photos of Haynes Manuals and also the Royal de Luxe giant puppets in Liverpool. Alamy have been the first line of defence to resolve the issue without the individual contributors getting directly involved.

If we’re not sensible about this then we could get to the point where the only thing that’s safe to photograph is the sky.

[Russell Watkins]

29 minutes ago, meanderingemu said:

 

which is actually what i retain of the last week.  Commission changes, modifying clauses against end user are things that will always happen- and easy to make a decision, but the complete apparent unpreparedness to a communication strategy of the changes is appalling.  It took a whole week to come in and say "what is written is not what we intend but we will leave it like that".  That's all we got.  No explanation, no control of message, no discussion, and a bunch of "don't let the door hit you on the way out" e-mail back to longer time contributors who are leaving. "

 

 

 

It's looking more and more like constructive dismissal of us small fry.

[Colblimp]

25 minutes ago, NYCat said:

 

I think you probably know this but... https://en.wikipedia.org/wiki/Ƒ/8_and_be_there

 

Paulette

I didn’t know, thanks for enlightening me. 

[spacecadet]

10 minutes ago, AndrewP said:

I’m trying to understand the practical realities of the indemnity clause.

As a fictitious example: I photograph a street scene of some houses in a quaint village and state that there is property in the image and that I don’t have a release. A mortgage company uses the photo in an advert and the owner of one of the houses claims for damages from the mortgage company, who then contact Alamy saying they’ve done nothing wrong (when they clearly have in publishing without a release).

Are Alamy really just going to pass on my details to the owner of the house and say “you’re on your own with this”? Surely a valid claim can only be made against the company that published the photo without a required property release in place? If I’ve annotated things correctly then I can’t be held responsible for the actions of others. Buyers also have a contract to agree to when purchasing.

If however I had stated there was no property in the photo and a release was not required then I can see I would be leaving myself open to claims and Alamy would pass responsibly on to me to sort out.

There have been previous instances were content has been in dispute with the property owners such as photographing on UK railway stations a few years back, photos of Haynes Manuals and also the Royal de Luxe giant puppets in Liverpool. Alamy have been the first line of defence to resolve the issue without the individual contributors getting directly involved.

If we’re not sensible about this then we could get to the point where the only thing that’s safe to photograph is the sky.

I can see the possibility of a respondent applying for a court order for your address (Alamy would be on shaky ground giving it up otherwise -GDPR and all that) but they would have to justify it in court. I suppose our worst-case is if they can, and we get landed with costs. It's a shameful position for Alamy to put its contributors in. At my level of earnings it's potentially far more worrying than a few hundred in lost commission.

Specifically on your case of the rights of publicity of a house, reassuringly this has been to law in the US, and it has none. So in that example you're in the clear. But one can see so many others. Alamy's so-called "reply" on Friday didn't refer to it at all, did it?

Edited May 24, 2021 by spacecadet

[Cryptoprocta]

27 minutes ago, AndrewP said:

I’m trying to understand the practical realities of the indemnity clause.

As a fictitious example: I photograph a street scene of some houses in a quaint village and state that there is property in the image and that I don’t have a release. A mortgage company uses the photo in an advert and the owner of one of the houses claims for damages from the mortgage company, who then contact Alamy saying they’ve done nothing wrong (when they clearly have in publishing without a release).

Are Alamy really just going to pass on my details to the owner of the house and say “you’re on your own with this”? Surely a valid claim can only be made against the company that published the photo without a required property release in place? If I’ve annotated things correctly then I can’t be held responsible for the actions of others. Buyers also have a contract to agree to when purchasing.

If however I had stated there was no property in the photo and a release was not required then I can see I would be leaving myself open to claims and Alamy would pass responsibly on to me to sort out.

There have been previous instances were content has been in dispute with the property owners such as photographing on UK railway stations a few years back, photos of Haynes Manuals and also the Royal de Luxe giant puppets in Liverpool. Alamy have been the first line of defence to resolve the issue without the individual contributors getting directly involved.

If we’re not sensible about this then we could get to the point where the only thing that’s safe to photograph is the sky.

There's common sense, and there are 'unreasonable contracts'.

But Alamy has spelled out "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".

I* think that's unreasonable, as we can't control what customers do, even if we have 'locked down' our images far more than legally necessary.

James' answer says they educate buyers, but even so, they still want US to be responsible if THEY misuse our images and have embedded that into our contract.

*IANAL

Caveat vendor.

The man in the Clapham omnibus might well decide to say, "It's in the contract, you agreed to it".

Edited May 24, 2021 by Cryptoprocta

[Foreign Export]

1 hour ago, Martin P Wilson said:

 

Quite simply, NO!

 

Definitely NO - there isn't anything anyone of us can do to prevent it - only sensible steps to minimise the risk

 

 

[Avpics]

58 minutes ago, Colblimp said:

I didn’t know, thanks for enlightening me. 

I'm glad it wasn't just me, and probably won't be the last time a comment totally flies over my head!

[Jools Elliott]

So much anger towards Alamy and justifiably so!

 

Seriously, what a carve up but then should we expect anything else in this industry?

 

Just skimmed through some of the comments about indemnity clauses etc. Interesting in that when I had a non-payer a while ago Alamy would not give me the customer's details so I could get the cash out them. Double standards on data?

 

Anyone contacted the NUJ etc?

[BidC]

1 hour ago, Richard Tadman said:

 

I still have considerable reservations about the legitimacy of what Alamy is attempting to do and doubt that it is enforceable in law.
Alamy is responsible for selling our images and contracting with the customer. We submit images that for the most part (indecency etc. aside) have no inherent existence until they are used and published. The image only becomes, racial/offensive or whatever when given a context and that is out of the control of the photographer. 
I'd be very surprised if a court reached any conclusion other than it was an "Unfair Contract terms" exclusion that was unenforceable.

 

In my opinion this all goes back (and probably originates from) the origins of the prevalent 'cancel' culture, and definitions of 'hate speech' 'free speech' etc which can support one (often minority) group over another. If an image is used in a defamatory way, then the photographer cannot possibly be made to pay for an arbitrary someone else's choice of usage. I saw a picture of a cross on social media yesterday that has been used to somehow draw a religious symbol (and possibly the religion itself) into a political conflict - if one had the mind to do so (and some groups would) that usage could be challenged, but one cannot blame the artist (unless s/he was the activist) for the offensive use of the symbolism. Maybe that's a poor example, but its the best I can do today ... Perhaps this clause is a 'box ticking' clause on the part of Alamy, but a similar clause needs to be (or perhaps has been) written into the purchaser's contract.

[Cryptoprocta]

I've said it before, but I've just seen this. We really need Katie Porter: