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On 21/05/2021 at 22:36, Betty LaRue said:

OU= Oklahoma University. Home of the Sooners, my football team. You can sign up for the cheer squad.

Ooh, Allan dressed in a skimpy outfit.  I'd pay to see that! 🤣

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18 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.



 

Great words and humbled to be mentioned as I consider myself to be a less than average press photographer.

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3 minutes ago, Colblimp said:

 I consider myself to be a less than average press photographer.

You're f8 and be there, though.

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Clauses 4.1.5, 5.1, and 7.1. would mean that for a contributor it will be safe to upload only images of flowers and bugs. (Maybe also sunsets, if they don't have any property or people visible.) These won't sue us. 

That is if you'll continue with Alamy. I've halted my uploads anyway... 

 

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22 minutes ago, spacecadet said:

Steady on! It was a fair comment.

 

 A fair comment indeed no doubt but nothing whatsoever to do with what I was referring to in the post of mine which was quoted. 

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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 🤨

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15 minutes ago, Colblimp said:

f8?

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

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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.

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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.

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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!

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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.

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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. "

 

 

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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?

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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.

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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. 

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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.

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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.

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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.

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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.

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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?

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