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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. 

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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.

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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'.

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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. 

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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.

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35 minutes ago, AndrewP said:

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'.

 

 

that is interesting.  so accuracy is not priority.  Also it seems that it would have fit under contract clauses: 

 

  1. Alamy will have the right to add, amend or delete any Metadata if, in Alamy’s opinion, this would be likely to increase the sales potential for that Content or if it believes the Metadata to be incorrect.

 

or Maybe they think having it mislabelled increases sales potential? 

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Posted (edited)
8 minutes ago, Harry Harrison said:

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.

Yes, that doesn’t help me at all. I still don’t know if I should Mark anything without releases as editorial only eg people on a beach. If they don’t clarify that, I will err on the cautious side and do so. If that restricts sales, they will have to contact me to lift it.

Edited by Sally
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Posted (edited)
6 minutes ago, Sally said:

Yes, that doesn’t help me at all. I still don’t know if I should Mark anything without releases as editorial only eg people on a beach. If they don’t clarify that, I will err on the cautious side and do so. If that restricts sales, they will have to contact me to lift it.

I haven't done this, and in view of the commission cut, I may tweak tags, but I will not be doing any more free admin work for Alamy's benefit on my existing images ever again.

The last time people did that (re exclusivity) their reward was a kick in the teeth.

Edited by spacecadet
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On 25/05/2021 at 16:11, Hodderauthor said:

But under this new contract, I'm not sure that's enough. Clause 4.1.5 gives Alamy the right to exploit any licence they see fit, effectively, which suggests they won't follow photographer-set restrictions such as Editorial Use Only. Indeed, if you go onto Alamy and select an image you've labelled as "Editorial Use Only" you'll see that Alamy put a banner above the prices saying "Available for Editorial and personal Use Only. Get in touch for commercial uses." To which I want to say, "Er, no! It's editorial use only!"

 

If Alamy can't be trusted to respect photographer-set restrictions, then it's not safe for me to continue with them (especially, if we're liable for everyone else's mistakes).

 

No, I don’t read that clause that way as I said in a previous post, though it could be worded much more clearly. The sentence is “

  1. except for any rights that have previously been licensed or granted in relation to the Content, there is not and will not be during the term of this Contract, be any limitation or restriction on Alamy’s ability to license the Content;”

The highlights state, IMHO, that Alamy can license as they see fit except for the rights a contributor has allowed. They can sell an image for pennies, make it for. 5 or 10 years or forever, but only within the restrictions that you’ve given. 

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Just now, spacecadet said:

I haven't done this, and in view of the commission cut, I may tweak tags, but I will not be doing any more free admin work for Alamy's benefit on my existing images ever again.

I see it as for my benefit, not theirs.

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Posted (edited)
On 26/05/2021 at 14:54, MizBrown said:

Because really bad photographers, bad writers, bad project directors and a range of other really bad things don't necessarily know how bad they are. 

 

That's not really the point. If you mark bad images as "premium" they won't sell and there is no reward for doing so. On the other hand if you recognise your most valuable work both the photographer and agency benefit. Of course buyers would ultimately decide whether they wished to pay the asking price or not.

 

Perhaps "premium" is not the right term, "full price" might be more appropriate!

Edited by hotbrightsky
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On 26/05/2021 at 16:23, Alan Beastall said:

Are we an endangered species like the Honey Bee?

 

The European honey bee is not an endangered species. It's essentially livestock.

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Posted (edited)
13 minutes ago, Sally said:

If they don’t clarify that, I will err on the cautious side and do so. If that restricts sales, they will have to contact me to lift it.

Yes, to give Alamy credit they do at least do that, I had marked one as 'Editorial only' simply because there were two cyclists coming towards me down a country lane and they were important to the picture. They arranged for the customer to take on any risk, which would have been negligible I suppose, but it was a pleasant exchange and a good sale. They may be doing a lot more of that in the fuure I suppose.

Edited by Harry Harrison
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8 hours ago, Martin P Wilson said:

The same has happened in the food industry: cheese-makers

Blessed are the cheese-makers...

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1 hour ago, Ollie said:

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.

 

It was sent directly to Ms Shelley - I just took off the top and tail of the letter before posting it here ... 

 

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1 minute ago, hotbrightsky said:

 

That's not really the point. If you mark bad images as "premium" they won't sell and there is no reward for doing so. On the other hand if you recognise your most valuable work both the photographer and agency benefit. Of course buyers would ultimately decide whether they wished to pay the asking price or not.

 

If you're capable of recognizing whether your work is valuable or not is a problem.   I used to read slush and participated in a few amateur writers workshops at one time.   Dropped out of one because people were telling each other that they were doing work as good as any in the US (nope).   What I said is the market place isn't always right, but it's not always wrong either, and PA/Alamy's business is selling or licensing photos to the marketplace.   Maybe allow premium prices and royalties on images that have sold more than five times or to people who have more than <some number> of images that have been licensed more than twice. 

 

 

 

 

 

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10 minutes ago, Sally said:

No, I don’t read that clause that way as I said in a previous post, though it could be worded much more clearly. The sentence is “

  1. except for any rights that have previously been licensed or granted in relation to the Content, there is not and will not be during the term of this Contract, be any limitation or restriction on Alamy’s ability to license the Content;”

The highlights state, IMHO, that Alamy can license as they see fit except for the rights a contributor has allowed. They can sell an image for pennies, make it for. 5 or 10 years or forever, but only within the restrictions that you’ve given. 

 

 

However 7.1

 

  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.

 

 

 

 

So they can't, but if they do, they will not be liable.  

 

So as many mention it is now a question of trust, how you feel about the "reasonable commercial endeavour". 

 

Seeing some of the info circulating about distributors, that side my trust is gone, and I have finally opted out.    If expectation of respecting which market we excluded are not even reasonable, not sure I can expect much. 

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4 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.

 

I agree. If Alamy is going to continue down its current laissez-faire path, then they need to insure both themselves and individual contributors like us. As much as I hate to say it, the micros probably have it right by deeming images either  "editorial" or "commercial" before making them available for licensing. It would be almost impossible for Alamy to start doing this now of course given the size of their existing collection. However, one solution might be to create two separate collections -- e.g. "Alamy Editorial" and "Alamy Commercial."

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1 minute ago, John Mitchell said:

 

I agree. If Alamy is going to continue down its current laissez-faire path, then they need to insure both themselves and individual contributors like us. As much as I hate to say it, the micros probably have it right by deeming images either  "editorial" or "commercial" before making them available for licensing. It would be almost impossible for Alamy to start doing this now of course given the size of their existing collection. However, one solution might be to create two separate collections -- e.g. "Alamy Editorial" and "Alamy Commercial."

 

Everything is in a database and is searchable.   Basically, they're trusting the contributors to make it clear that images do or don't have releases, but that tab is marked optional.

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Posted (edited)
4 minutes ago, MizBrown said:

 

Everything is in a database and is searchable.   Basically, they're trusting the contributors to make it clear that images do or don't have releases, but that tab is marked optional.

 

Exactly. That's what I meant by "laissez-faire path" -- letting us make all the decisions -- i.e. "passing the buck."

 

This seemed like a great idea at one time, but now it seems to be backfiring.

 

 

Edited by John Mitchell
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I know some on here are thinking of checking that 'Editorial only' box for extra safety, whether that's real or notional we're not sure. I wonder if I'm reading too much into it, perhaps it's just a way of checking "Don't sell for advertising and promotion" & "Don't sell for consumer goods" in one click rather then two, I hadn't actually realised that checking both those automatically checked "Editorial only", I didn't know it worked both ways. Still not sure in real terms what extra protection that offers over simply stating that you have no releases which is the default in any case.

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22 minutes ago, meanderingemu said:

 

 

However 7.1

 

  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.

 

 

 

 

So they can't, but if they do, they will not be liable.  

 

So as many mention it is now a question of trust, how you feel about the "reasonable commercial endeavour". 

 

Seeing some of the info circulating about distributors, that side my trust is gone, and I have finally opted out.    If expectation of respecting which market we excluded are not even reasonable, not sure I can expect much. 

 

Sounds like gobbledygook to me.

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