Contract Change 2021 - Official thread

[Andy G]

These are my thoughts for what they are worth - If the contributor has liability for content submitted not the publisher then maybe this can be addressed by doing what the other stock libraries do and that is paying someone to look at every image and see if it breaks any laws before allowing it to go on sale rather than spot checking in QC, this leads Alamy to not knowing what images they have on sale on their own systems. Plus Alamy having sufficient indemnity insurance to cover any legal challenges without passing the buck on to the contributor especially as Alamy take a much larger slice of the pie. Also if a contributor can be sued surely so can Alamy for hosting the offending image on their website.

I would rather accept the percentage drop what Alamy have proposed - apart from the silver tier to ensure that they have sufficient indemnity to cover both Alamy and the contributors back.

[formerly snappyoncalifornia]

What if....we added the following or words to that  affect in the "optional" field for each image:

 

Any use or exploitation of this content that violates the restrictions or permissions needed as indicated shall be a violation of the intellectual property rights of the copyright holder and the sole responsibility of Alamy, or it's agents or distributors.

 

Would this indemnify the photographer or at the very least provide a legal basis to challenge  Alamy should it become contentious?

Would Alamy allow such a disclaimer?

Would Alamy delete the image, or just refuse to sell it?

 

OK, have at it!

 

 

 

 

 

[spacecadet]

11 minutes ago, formerly snappyoncalifornia said:

What if....we added the following or words to that  affect in the "optional" field for each image:

 

Any use or exploitation of this content that violates the restrictions or permissions needed as indicated shall be a violation of the intellectual property rights of the copyright holder and the sole responsibility of Alamy, or it's agents or distributors.

 

Would this indemnify the photographer or at the very least provide a legal basis to challenge  Alamy should it become contentious?

Would Alamy allow such a disclaimer?

Would Alamy delete the image, or just refuse to sell it?

 

OK, have at it!

 

 

 

 

 

It wouldn't be effective even if allowed.

The contract overrides any agreement or statement which contradicts it. It's a standard clause but I forget which one it is.

[Cryptoprocta]

1 hour ago, MDM said:

 

..., the fact that something is in the current contract does not mean it does not need examination or reconsideration in the light of the changes to contributor liability in the new contract.

 

This.

I've been speculating to myself whether we can cover ourselves for inadvertantly breaching the bit I'm highlighting in clause 4.10:

"You will ensure that all Metadata including without limitation captions, keywording, descriptions and Pseudonyms, rights management or other information pertaining to the Images is and will remain accurate and factually correct and does not infringe the copyright or other rights of any third party, and are not defamatory or pornographic."

by putting a statement such as "Information correct at the time of shooting" into the description box, though clearly it would take me a long time to change all images, and it would take you considerably longer.

Otherwise the issues highlighted previously such as species changing their names or entire taxonomy; buildings changing their use; politicians changing their portfolio and no doubt many more would leave us in breach of that clause (as we have been for a while, but didn't notice).

Edited May 27, 2021 by Cryptoprocta

[Cryptoprocta]

Following on the above, I have previously taken the peer advice that for RM images we didn't need to tick the editorial box, only indicate that releases were needed for commercial use/not available.

Now wanting to take a more belt and braces approach, I want to tick editorial on these files.

In Image Manager, I did a search on 'not model released' and ticked editorial only on the 'newest  500 passed', ditto 'contains property'.

Is there a quick way to:

go through the rest of the files adding editorial only as needed (for extra security)

TIA.

Edited May 27, 2021 by Cryptoprocta

[wilkopix]

18 hours ago, MizBrown said:

 

They may not have planned to change the royalty structure last year.   Or might not have been in shape to make plans considering.  

Last year they wanted to change the royalty structure but half backed down and offered 50% for exclusive content. Then said they had no plans to change it again.

Many of us pulled work from other agencies to give Alamy the exclusivity. So in terms of time and lost revenue it's been a complete and utter waste.

Obviously not a company to be trusted anymore .. still waiting to see what changes, if any they will make to the contract. They'll probably change that again in a year too.

[Cryptoprocta]

1 minute ago, wilkopix said:

Last year they wanted to change the royalty structure but half backed down and offered 50% for exclusive content. Then said they had no plans to change it again.

Many of us pulled work from other agencies to give Alamy the exclusivity. So in terms of time and lost revenue it's been a complete and utter waste.

Obviously not a company to be trusted anymore .. still waiting to see what changes, if any they will make to the contract. They'll probably change that again in a year too.

Last year it was Alamy; this year it's PA.

Next year; who knows?

[formerly snappyoncalifornia]

33 minutes ago, spacecadet said:

It wouldn't be effective even if allowed.

The contract overrides any agreement or statement which contradicts it. It's a standard clause but I forget which one it is.

Not sure. There is a concept in contractual law called "waiver", which could apply if an action is taken (selling the image). Seems to me that by selling the image Alamy would be agreeing to the waiver.

 

Not a lawyer, only play one in the forum.

[meanderingemu]

3 hours ago, MDM said:

 

A few thoughts Keith.

 

Firstly, I was referring to Clause 4.4 although 5.1 is relevant in terms of contributor liability if one has breached anything in section 4 (which would include accuracy of metadata). However, it is not hard to imagine scenarios where inaccurate metadata could lead to legal problems. I don't know what Alamy have in their customer contract in this regard and I presume they have covered themselves but can you really dismiss it out of hand and say that we should not even be discussing it?

 

Secondly, the fact that something is in the current contract does not mean it does not need examination or reconsideration in the light of the changes to contributor liability in the new contract. I know I pointed out several times last week that people were in many cases panicking about things that were already in the existing contract but I also said that that did not mean that one should not be worried about it now (in other words, the fact that the worry is leading to a sky is falling on my head syndrome does not mean that it is not falling on my head and in fact has been all along). As things currently stand before Alamy has presented revised clauses, it is probably pointless to speculate too much. 

 

 

 

 

 

and this actually brings to an interesting case,  Did Alamy have any impact when a mislabelled Kea as a Kakapo was licensed by a client used in a news article and had said media operation made fun of on social media for their apparent lack of knowledge? 

[meanderingemu]

2 hours ago, Cryptoprocta said:

This.

I've been speculating to myself whether we can cover ourselves for inadvertantly breaching the bit I'm highlighting in clause 4.10:

"You will ensure that all Metadata including without limitation captions, keywording, descriptions and Pseudonyms, rights management or other information pertaining to the Images is and will remain accurate and factually correct and does not infringe the copyright or other rights of any third party, and are not defamatory or pornographic."

by putting a statement such as "Information correct at the time of shooting" into the description box, though clearly it would take me a long time to change all images, and it would take you considerably longer.

Otherwise the issues highlighted previously such as species changing their names or entire taxonomy; buildings changing their use; politicians changing their portfolio and no doubt many more would leave us in breach of that clause (as we have been for a while, but didn't notice).

 

is indicating that an image in "not exclusive" when it actually is (might be), because Alamy's definition is unclear or to get out of the legal risk of Alamy's new infringement policy, and breach of information pertaining to the Images is and will remain accurate and factually correct

[meanderingemu]

4 hours ago, Cliff Hide said:

 

I've just emailed a few questions to Alamy about clause 5.1 so thought I would post them here in case useful (together with the preamble for context) and also might help the thread get back on track!  If I get any answers I'll post them here.

 

______________________________________

 

I have yet to make a final decision as to whether to accept your proposed contract changes. Before I do, I would welcome some additional information particularly in regard to clause 5.1 which, to my mind, transfers a considerable amount of legal obligations to Alamy’s contributors. They are intended to help me understand the level of risk I would be exposed to and how it might be mitigated via professional indemnity insurance or otherwise.

 

 

1. Under the proposed revision clause 5.1 can you clarify where liability for any legal fees would have fallen in the recent Big Issue/Kandar case (where the magazine heavily cropped an image to focus on a copyrighted work without Alamy’s knowledge)?

 

How would this situation have changed if the original photograph had been able to rely on the incidental inclusion exemption contained in the CDPA 1988 Act under section 31?

 

Further details here if needed: https://petapixel.com/2019/07/10/magazine-says-its-stolen-cover-photo-was-a-stock-photo-of-the-photo/

 

 

 

 

 

This one got me thinking.  This case was a clear misuse of the licence by the buyer.  I am curious if Alamy upheld a fiduciary responsibility and pursued the matter, and if yes was the intent to share any awards with the contributor?  

[meanderingemu]

3 hours ago, Andy G said:

These are my thoughts for what they are worth - If the contributor has liability for content submitted not the publisher then maybe this can be addressed by doing what the other stock libraries do and that is paying someone to look at every image and see if it breaks any laws before allowing it to go on sale rather than spot checking in QC, this leads Alamy to not knowing what images they have on sale on their own systems. Plus Alamy having sufficient indemnity insurance to cover any legal challenges without passing the buck on to the contributor especially as Alamy take a much larger slice of the pie. Also if a contributor can be sued surely so can Alamy for hosting the offending image on their website.

I would rather accept the percentage drop what Alamy have proposed - apart from the silver tier to ensure that they have sufficient indemnity to cover both Alamy and the contributors back.

 

 

but this is a false premise.  Plenty of images at other stock libraries are accepted that break local and global laws.  

 

in fact i will add, at least at one of the large microstock agency,  contributors have been actually encouraged to resubmit the image until it goes through by its support team. 

Edited May 27, 2021 by meanderingemu

[MDM]

 

1 hour ago, meanderingemu said:

 

 

and this actually brings to an interesting case,  Did Alamy have any impact when a mislabelled Kea as a Kakapo was licensed by a client used in a news article and had said media operation made fun of on social media for their apparent lack of knowledge? 

 

Alamy do have a disclaimer in their customer contract on accuracy of metadata so the onus is on the buyer to check the accuracy of the caption and any description. So they are doubly protected in the event of a problem but I expect it would have to be something with serious consequences before it would come back to the contributor. It's a fair clause (4.4) I think as long as we treat it in a common sense way but, like everything else in the contracts at the moment, it is up for serious scrutiny. 

 

In reality a lot of the issues come down to the fact that the Alamy collection is not QC'd for content or metadata and this is an intrinsic part of the Alamy model which sets it apart from other agencies. So it comes with the territory. Will it be possible to take a hard line with infringements as seems to be about to happen at the same time as having this model of supply? That is the burning question I feel and may well be at the root of what is going on right now. 

Edited May 27, 2021 by MDM

[meanderingemu]

2 minutes ago, MDM said:

 

 

Alamy do have a disclaimer in their customer contract on accuracy of metadata so the onus is on the buyer to check the accuracy of the caption and any description. So they are doubly protected in the event of a problem but I expect it would have to something with serious consequences before it would come back to the contributor. It's a fair clause (4.4) I think as long as we treat it in a common sense way but, like everything else in the contracts at the moment, it is up for serious scrutiny. 

 

In reality a lot of the issues come down to the fact that the Alamy collection is not QC'd for content or metadata and this is an intrinsic part of the Alamy model which sets it apart from other agencies. So it comes with the territory. Will it be possible to take a hard line with infringements as seems to be about to happen at the same time as having this model of supply? That is the burning question I feel and may well be at the root of what is going on right now. 

 

 

but disclaimers don't always protect against reputation and liability  risk. I used to work in insurance, and trust me contracts were way worse on disclaimer than anything Alamy released, but that never stopped actions against the insurer.  

 

so in line with the clauses, i think it would help contributor ascertain their own risk if we were provided with concrete example of what Alamy is actually afraid on.  If the Kea case had 0 impact, i'm probably feeling ok with the fact i still have an MP (Canada) labelled as a Conservative MP, even though he was since thrown out of the party and sits as an independent. 

[MizBrown]

7 hours ago, Olivier Parent said:

I hope that, in some way, the decision of some to leave the agency can be beneficial to those who remain.

 

Right now, nobody knows what revisions we're going to be seeing, so there isn't anything much to discuss over the contract.   I think a combination of having people who weren't Silver resigning (I doubt seriously if Alamy was the least alarmed by my resignation) and the uproar here is why Alamy is going to offer a revised contract. 

 

I doubt the terms will be changed for the silver level -- and if Alamy continues to sell cheap, then that's another decision to be made for those of you who have stayed.   The other thing that selling cheap does is push more people into the Silver category. 

 

Interesting thing is Petapixel and others of the camera press haven't mentioned this last time I Googled (a minute ago).   The Wikipedia page hasn't been revised.   But a microstock forum has been discussing it.

 

Realistically, newbies should wait until they can put 1,000 good photos up within at least the first year.   And, yeah, people should look at what they sell and not try more of what they don't sell just because they're in a location most people aren't in.   Metadiscussions of how not to land in the lowest tier are about the contract, too. 

 

 

 

 

[Ollie]

5 hours ago, Cliff Hide said:

 

I've just emailed a few questions to Alamy about clause 5.1 so thought I would post them here in case useful (together with the preamble for context) and also might help the thread get back on track!  If I get any answers I'll post them here.

 

______________________________________

 

I have yet to make a final decision as to whether to accept your proposed contract changes. Before I do, I would welcome some additional information particularly in regard to clause 5.1 which, to my mind, transfers a considerable amount of legal obligations to Alamy’s contributors. They are intended to help me understand the level of risk I would be exposed to and how it might be mitigated via professional indemnity insurance or otherwise.

 

 

1. Under the proposed revision clause 5.1 can you clarify where liability for any legal fees would have fallen in the recent Big Issue/Kandar case (where the magazine heavily cropped an image to focus on a copyrighted work without Alamy’s knowledge)?

 

How would this situation have changed if the original photograph had been able to rely on the incidental inclusion exemption contained in the CDPA 1988 Act under section 31?

 

Further details here if needed: https://petapixel.com/2019/07/10/magazine-says-its-stolen-cover-photo-was-a-stock-photo-of-the-photo/

 

2. How many court cases has Alamy and its affiliates been involved in over the last five years (or a similar period if that is more convenient)? What were the average level of legal fees incurred in each case?

 

Can you provide the same information for Alamy’s customers and distributors and the current cohort size of each?

 

3. Who provides Alamy’s liability insurance? Would they be willing to provide cover for clause 5.1 as currently drafted?

 

Are you aware of any insurer that has agreed to provide professional indemnity cover at reasonable rates for the liabilities that are being transferred onto your contributors both by clause 5.1 and elsewhere in the proposed contract?

 

4. The proposed clause 5.1 seems to be heavily in Alamy’s favour. I would welcome clarification from your in-house lawyers, who I believe are responsible for the drafting, how clause 5.1 as proposed passes the reasonableness tests contained in the Unfair Contract Terms Act 1977. The legislation specifically deals with non-negotiated contracts between parties with asymmetrical bargaining power with the weaker being asked to provide wide ranging indemnities for the stronger which seems to be the case here.

 

Given the low level of prominence the changes to clause 5.1 were given in your blog post 17th May I’m assuming they aren’t considered either unusual or onerous (using common law definitions). I would welcome clarification as to why not?

 

 

 

[meanderingemu]

8 minutes ago, Sally R said:

 

A case like this shows where captioning and keywording might be more significant. I have seen quite a few plants, in particular, mislabelled with the wrong species/genus/family names. I think some contributors just do a rough google search and think that looks close enough for the plant's scientific name. It's frustrating as it makes Alamy look a bit less professional, but a lot of the time the buyer may never see it anyway because it doesn't show up in searches and they just find the correctly labelled ones. Or if they are knowledgeable themselves and they see a good image of a wrongly labelled plant they will just correct it in their publication. However, when you have a high profile species such as the Kakapo it could be a bigger deal. That's where it potentially might not reflect so well on Alamy when images are labelled incorrectly. Specialist wildlife agencies can probably more easily check such information, but an agency like Alamy that allows pretty much everything subject-wise cannot really police the precise accuracy of metadata for every image.

 

 

what bothers me most, is there is absolutely no process to correct it. If the warbling vireo i uploaded is in fact a Philadelphia vireo, and someone noticed it, they should have a way to flag it (it isn't by the way). 

[CarlMillerPhotos]

12 hours ago, Chuck Nacke said:

Just my opinion;

 

We are all responsible for the "demise" of "Stock Photography"

 

I go back to the days when "OLD" photojournalists started putting

their images into the first "Stock libraries"  then the photo agents 

realized that there was money to be make from licensing "File Images"

 

Then digital and the internet came along and everyone was a "photographer."

 

In the 80's when I was working with one of the hottest News Photo

agencies in the U.S. I was making almost half of my large income from

the licensing of my "file" material (many of those images are on Alamy

now) but all of those licenses in the 80's and early 90's were made by  

"Real Photo Agents" who understood the business and were trained 

in journalism.

 

I have read on this forum too many times "Just upload it and see if it 

sells."  occasionally those "Second Rate Images" are licensed or sold 

for small fees.

 

Agencies jumped on this band wagon and made it worse.  Take a look

at Alamy Live News or recently uploaded images to any of the major sites.

over 50% of the images are "Garbage" and wasting band width, my opinion.

 

In my own opinion, the only way to save "Stock Photography" and independent

photography is for everyone contributing to the pool to raise their standards.

 

Finally, I have been trying to stay out of this discussion, BUT I am shocked and

appalled that Alamy would put out a contract like they did.  Then to make the 

entire situation WORSE they admitted that there were sections that were not 

clear.  I am not perfect, but I try to be.  I do not release things that are not 

accurate and if I do make a mistake I correct it ASAP.

 

I have been in this business for too many years and I have become very found

of Alamy and the people at Alamy that I communicate with.  I would like to see

Alamy succeed and all serious contributors to Alamy be happy.

 

I will try to stay away from this thread.

 

Thanks,

 

Chuck Nacke

Why would anyone downvote this? Because you know he's talking about you? I know I barely belong here. But in the last five years, I would have made "gold" for three of them (and I'm at $204 so far this year) so I'm going to keep trying. I'm no youngster myself, but maybe that's why I know to listen to the wisdom of people like Chuck.

[MDM]

2 minutes ago, meanderingemu said:

 

 

but disclaimers don't always protect against reputation and liability  risk. I used to work in insurance, and trust me contracts were way worse on disclaimer than anything Alamy released, but that never stopped actions against the insurer.  

 

so in line with the clauses, i think it would help contributor ascertain their own risk if we were provided with concrete example of what Alamy is actually afraid on.  If the Kea case had 0 impact, i'm probably feeling ok with the fact i still have an MP (Canada) labelled as a Conservative MP, even though he was since thrown out of the party and sits as an independent. 

 

I think in the case of the MP there should be no problem as he was a Conservative at the time the picture was taken which should be shown in the date taken field. There must be millions of pictures of people who are now dead. I doubt there is an expectation to go back and change that type of information. Commonsense should prevail. 

[Ollie]

5 hours ago, Cliff Hide said:

 

I've just emailed a few questions to Alamy about clause 5.1 so thought I would post them here in case useful (together with the preamble for context) and also might help the thread get back on track!  If I get any answers I'll post them here.

 

______________________________________

 

I have yet to make a final decision as to whether to accept your proposed contract changes. Before I do, I would welcome some additional information particularly in regard to clause 5.1 which, to my mind, transfers a considerable amount of legal obligations to Alamy’s contributors. They are intended to help me understand the level of risk I would be exposed to and how it might be mitigated via professional indemnity insurance or otherwise.

 

 

1. Under the proposed revision clause 5.1 can you clarify where liability for any legal fees would have fallen in the recent Big Issue/Kandar case (where the magazine heavily cropped an image to focus on a copyrighted work without Alamy’s knowledge)?

 

How would this situation have changed if the original photograph had been able to rely on the incidental inclusion exemption contained in the CDPA 1988 Act under section 31?

 

Further details here if needed: https://petapixel.com/2019/07/10/magazine-says-its-stolen-cover-photo-was-a-stock-photo-of-the-photo/

 

2. How many court cases has Alamy and its affiliates been involved in over the last five years (or a similar period if that is more convenient)? What were the average level of legal fees incurred in each case?

 

Can you provide the same information for Alamy’s customers and distributors and the current cohort size of each?

 

3. Who provides Alamy’s liability insurance? Would they be willing to provide cover for clause 5.1 as currently drafted?

 

Are you aware of any insurer that has agreed to provide professional indemnity cover at reasonable rates for the liabilities that are being transferred onto your contributors both by clause 5.1 and elsewhere in the proposed contract?

 

4. The proposed clause 5.1 seems to be heavily in Alamy’s favour. I would welcome clarification from your in-house lawyers, who I believe are responsible for the drafting, how clause 5.1 as proposed passes the reasonableness tests contained in the Unfair Contract Terms Act 1977. The legislation specifically deals with non-negotiated contracts between parties with asymmetrical bargaining power with the weaker being asked to provide wide ranging indemnities for the stronger which seems to be the case here.

 

Given the low level of prominence the changes to clause 5.1 were given in your blog post 17th May I’m assuming they aren’t considered either unusual or onerous (using common law definitions). I would welcome clarification as to why not?

 

 

Cliff:  This thread has accumulated many off-topic posts to the point where I wonder if Alamy management is now reading all new posts carefully.  Your questions--especially Numbers 3 and 4--are important enough that they deserve to be submitted directly to Management, i.e. to Emily Shelley and any others whose addresses you might have.  Whether they reply on this thread is less important than that they have reflected on your questions, which are important enough that they should influence Alamy's work in revising their proposed contract.

[Shergar]

Releases – Alamy says Relax. 

https://www.alamy.com/blog/releases-alamy-says-relax

[AndrewP]

38 minutes ago, Sally R said:

That's where it potentially might not reflect so well on Alamy when images are labelled incorrectly.

Many years ago the Alamy homepage had the same image up for a week rather than the current 24 hours and they once had a photo captioned "Chester Castle" which showed a castle surrounded with fields and open countryside. Chester Castle is within the roman city walls in the city centre so the photo was clearly of somewhere else, it was actually of Beeston Castle which is about 10 miles outside Chester.

I contacted Alamy to tell them of the error and their response was that they had informed the contributor of what I had mentioned but ultimately it was down to the contributor to change the caption 'if they felt it was necessary'.

[Sally]

4 hours ago, Cryptoprocta said:

Following on the above, I have previously taken the peer advice that for RM images we didn't need to tick the editorial box, only indicate that releases were needed for commercial use/not available.

Now wanting to take a more belt and braces approach, I want to tick editorial on these files.

In Image Manager, I did a search on 'not model released' and ticked editorial only on the 'newest  500 passed', ditto 'contains property'.

Is there a quick way to:

go through the rest of the files adding editorial only as needed (for extra security)

TIA.

Only by using Alamy Lightroom Bridge. You just choose all your uploaded on sale images, use metadata search to find those with no releases, tick editorial only box for them all, the upload Alamy data. 

[Harry Harrison]

1 hour ago, Shergar said:

https://www.alamy.com/blog/releases-alamy-says-relax

Might have been good if they'd mentioned the significance of the 'Editorial only' check-box here. An opportunity missed, or perhaps they don't know themselves.

[Sally]

28 minutes ago, Sally R said:

Thanks Andrew. It looks like Alamy are not too worried then about incorrect labelling.

Don’t forget that the papers often make their own mistakes. I had a news image published today in The Times which gave the correct name of one of the people in the photo but somehow Peter got turned into Paul. Makes me look bad.