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Contract Change 2021 - Official thread


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On 07/06/2021 at 20:53, Bill Brooks said:

One size does not fit all, so decide your individual future based on your specific needs.

 

Many of you will have a strategy like Doc. Some of you will not make a decision, do nothing about the change, and allow yourself to be swept along.

 

There is a difference between making a decision to do nothing about the change, or not making any decision because you are only allowing yourself to be swept along.

 

If you make that decision, to do nothing about the change after examining your needs, you are not being swept along. You own the decision. It is your decision, not Alamy's decision. Important because you will want to move forward on your decision to do nothing about the change. Make it work and review it only once a year in light of new evidence, not after every license.

I've chosen to drop out. Many years ago, going on half a century, I put lap-dissolved slides into a TV promotion for my employer, a radio broadcasting company. I thought the free-lance associate who arranged for the model got the signed release, and he thought I did. In any case, the model was clothed up to her neck and no one was defamed or damaged in any way, but that didn't prevent the nuisance suit.

 

Even though I've been careful when it comes to photos that have people or property in them — marking them as lacking releases and avoiding shooting things I shouldn't, such as murals — the wording of section 5 of the new contract makes it simply not worth the risk.

 

I thought of deleting all images that include unreleased people and property, just keeping bugs and flowers and such. However (lacking any legal knowledge) it seems to me that to accept the new contract for safe images would mean that, having accepted the new contract, any repercussions from earlier sales would carry the same risk as if I continued to keep them in my collection. If I terminate my contract with Alamy by the end of this month, as I have done, then any future possible problems would have to be addressed under the old contract.

 

Thanks to all for the helpful information and advice these past few years,

Don Douglas

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59 minutes ago, DDoug said:

 

I thought of deleting all images that include unreleased people and property, just keeping bugs and flowers and such. However (lacking any legal knowledge) it seems to me that to accept the new contract for safe images would mean that, having accepted the new contract, any repercussions from earlier sales would carry the same risk as if I continued to keep them in my collection. If I terminate my contract with Alamy by the end of this month, as I have done, then any future possible problems would have to be addressed under the old contract.

That's definitely something I'd like to see clarified. If the extra financial liabilities are still there in the ammended contract, will these extra liabilities apply to any future claims which might arise from publication of images which I delete before the new contract comes into force?

 

Mark

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8 minutes ago, Phil Crean said:

Where?

 

I clicked on the "new contract" link in the dashboard. The text seems to be tightened up. It reads:

 

Indemnities

"You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s copyright; (ii) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract."

 

I'll avoid stating my opinion of this, as it would be an insult to weasels.

 

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Thanks for your patience whilst we make amendments to some of the new contract clauses. These amendments are confirmed below.

 

The 45 day notice period restarts from today, and this date will be reflected on your contributor dashboard.

 

 

Clause Change Listed 17 May 2021 Replacement
4.1.5. Amendment 4.1.5. 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; 4.1.5. subject always to clause 4.1.10, 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, any limitation or restriction on Alamy’s ability to license the Content;
4.1.6 Amendment 4.1.6. any use or exploitation of the Content by Alamy, a Customer or a Distributor will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, indecent, vulgar or violate publicity rights anywhere in the world. 4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights;
5.1. Amendment 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity; (ii) any use, exploitation or distribution of the Content by the Indemnified Parties; (iii) any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and (iv) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract. 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s copyright; (ii) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract.

 

The full contract can be found here: https://www.alamy.com/terms/contributor.aspx

 

Best regards,

 

Alamy

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32 minutes ago, Alamy said:

Thanks for your patience whilst we make amendments to some of the new contract clauses. These amendments are confirmed below.

 

The 45 day notice period restarts from today, and this date will be reflected on your contributor dashboard very soon.

 

 

Clause Change Listed 17 May 2021 Replacement
4.1.5. Amendment 4.1.5. 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; 4.1.5. subject always to clause 4.1.10, 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, any limitation or restriction on Alamy’s ability to license the Content;
4.1.6 Amendment 4.1.6. any use or exploitation of the Content by Alamy, a Customer or a Distributor will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, indecent, vulgar or violate publicity rights anywhere in the world. 4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights;
5.1. Amendment 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity; (ii) any use, exploitation or distribution of the Content by the Indemnified Parties; (iii) any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and (iv) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract. 5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content infringes any third party’s copyright; (ii) any breach of any your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract.

 

The full contract can be found here: https://www.alamy.com/terms/contributor.aspx

 

Best regards,

 

Alamy

 

Apart from some minor amendments to the wording, I'm struggling to see any legal or meaningful difference between the previous clauses and the re-worded version. To me the thrust and significance of the clauses are identical in effect and other than removing some "noise" don't constitute any meaningful change.
 

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Please someone correct me if I've got this wrong but just for reference to me the changes appear to be as follows:

 

4.1.5 - added
subject always to clause 4.1.10,

4.1.6 - changed
any use or exploitation of the Content by Alamy, a Customer or a Distributor
replaced by:
the Content uploaded to the System

 

5.1.
(i) any claim that the Content infringes any third party’s rights including but not limited to any third party trademark, copyright, moral rights or other intellectual property rights, or any right of privacy or publicity; 

replaced by:

(i) any claim that the Content infringes any third party’s copyright; 


(ii) any use, exploitation or distribution of the Content by the Indemnified Parties; 

replaced by:
(ii) any breach of any your representations, obligations and warranties under this Contract or the System.

removed:
(iii) any claim against Alamy as a result of Alamy or its representatives pursuing an actual or suspected infringement of any Content; and 
(iv) any breach of any your representations, obligations and warranties under this Contract or the System. 

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Not a lawyer but the modifications all appear to be positive for the contributor. 

 

Clause 4.1.5 clarifies the worry about restrictions not being applied and, as has been said before several times, has effectively been in the contract for years. 

 

Clause 4.1.6 is a significant change in that the May 17th version places the responsibility on the contributor for any usage of the images whereas the revised version just refers to uploaded content and it takes away the bit about anywhere in the world. This is not a minor change in my opinion as it changes the whole meaning of the clause to something a lot more acceptable (I would be more concerned if I was uploading material which might be deemed obscene). I assume English law applies to this?

 

Clause 5.1 removes the bit about any use by customers etc so again this is removing responsibility from the contributor for the actions of others as long as the warranties we make are correct. Again this is pretty much standard and fair enough. If we claim something that is not true, then that is unfair to Alamy or their customers.

 

I think it is time now to check up on our image collections but I do think that these changes do answer a lot of the problems.

Edited by MDM
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6 minutes ago, Phil Crean said:

For some reason my question was removed...?

Can anyone explain how a clause can be enforced after the termination of the contract???

Makes no sense to me.

Phil

 

Effectively, if you misrepresent one of your images or licences, Alamy are reserving the right to pursue you for this even if the contract is subsequently terminated. The alleged 'breach' will survive termination of the agreement if it only becomes apparent later. It's not altogether unusual legally, but certainly unwelcome.

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7 minutes ago, Phil Crean said:

For some reason my question was removed...?

Can anyone explain how a clause can be enforced after the termination of the contract???

Makes no sense to me.

Phil

 

If you say that you have copyright and it turns out down the line that you don't, then you remain responsible for that even after termination of the contract. Again this is standard and has probably been there all along. 

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Just now, Richard Tadman said:

 

Effectively, if you misrepresent one of your images or licences, Alamy are reserving the right to pursue you for this even if the contract is subsequently terminated. The alleged 'breach' will survive termination of the agreement if it only becomes apparent later. It's not altogether unusual legally, but certainly unwelcome.

Thanks... However I would expect that you would have to have lied deliberately in order for that to be enforced.

Phil

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2 minutes ago, MDM said:

 

If you say that you have copyright and it turns out down the line that you don't, then you remain responsible for that even after termination of the contract. Again this is standard and has probably been there all along. 

Indeed claiming Copyright in an image where you don't own it would leave you open to charges of fraud, (I would think, notalawyer.com!)

Phil

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1 minute ago, Phil Crean said:

Thanks... However I would expect that you would have to have lied deliberately in order for that to be enforced.

Phil

That's true but it also encompasses negligent or careless representations as well as deliberate falsification.

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5 minutes ago, Richard Tadman said:

That's true but it also encompasses negligent or careless representations as well as deliberate falsification.

So someone who makes a mistake in ticking or not ticking a box is then liable... including people who don't speak English very well!

Phil

Edited by Phil Crean
Grammer
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8 minutes ago, MDM said:

Not a lawyer but the modifications all appear to be positive for the contributor. 

 

Clause 4.1.5 clarifies the worry about restrictions not being applied and, as has been said before several times, has effectively been in the contract for years. 

 

Clause 4.1.6 is a significant change in that the May 17th version places the responsibility on the contributor for any usage of the images whereas the revised version just refers to uploaded content and it takes away the bit about anywhere in the world. This is not a minor change in my opinion as it changes the whole meaning of the clause to something a lot more acceptable (I would be more concerned if I was uploading material which might be deemed obscene). I assume English law applies to this?

 

Clause 5.1 removes the bit about any use by customers etc so again this is removing responsibility from the contributor for the actions of others as long as the warranties we make are correct. Again this is pretty much standard and fair enough. If we claim something that is not true, then that is unfair to Alamy or their customers.

 

I think it is time now to check up on our image collections but I do think that these changes do answer a lot of the problems.

 

Hi MDM. I interpret 4.1.6 differently. I don't think that striking out "anywhere in the world" alters the clause significantly or at all. Being 'silent' about the geography isn't the same as explicitly stating 'within the UK' or similar. I think that Alamy could justifiably argue that not restricting the clause to a region effectively still encompasses the world. Clever drafting!

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An improvement on clarity, but still:

"4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights; "

How can we control what any other person will 'deem to be' any of these things?

Presumably an anti-vaxxer would deem images of anything to do with covid vaccination offensive, for example.

Ditto any Covid imagery might be deemed offensive by covid-deniers.

That's still not a safe clause for suppliers.

In Victorian days, not only were ankles deemed to be indecent, but only ferns were suitable plants for young ladies to interest themselves in.

Edited by Cryptoprocta
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14 minutes ago, Richard Tadman said:

 

Hi MDM. I interpret 4.1.6 differently. I don't think that striking out "anywhere in the world" alters the clause significantly or at all. Being 'silent' about the geography isn't the same as explicitly stating 'within the UK' or similar. I think that Alamy could justifiably argue that not restricting the clause to a region effectively still encompasses the world. Clever drafting!

 

Yes you are probably correct but I think the main thing is the difference in:

 

May 17 - 4.1.6. any use or exploitation of the Content by Alamy, a Customer or a Distributor will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, indecent, vulgar or violate publicity rights anywhere in the world.

 

June 9 -  4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity right

 

The revised version refers to content uploaded to the system whereas the original refers to any use or exploitation by Alamy, a Customer or a Distributor. That is basically ridiculous expecting us to accept the responsibility for that. Alamy have said they cover usage in other parts of the world in their customer contract.

 

I think the wording could be even more explicit though. Deemed racist, for example, could be interpreted as uploading a picture of someone who is behaving in a racist manner rather than what is really intended (in my opinion) which is that the uploaded material is not fundamentally racist including captions so we don't condone racism in the caption. Vulgar, indecent, insulting and obscene are very subjective and a big stretch in the 21st Century. 

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4 minutes ago, Cryptoprocta said:

An improvement on clarity, but still:

"4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights; "

How can we control what any other person will 'deem to be' any of these things?


Very true. I’m thinking specifically of deemed to be insulting or offensive. Sometimes half the placards at a demonstration could be deemed such by people with opposing views and is very subjective. All I do is record what is happening. This is potentially censorship of news and what in reality happens. 

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5 minutes ago, Cryptoprocta said:

An improvement on clarity, but still:

"4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights; "

How can we control what any other person will 'deem to be' any of these things?

Presumably an anti-vaxxer would deem images of anything to do with covid vaccination offensive, for example.

 

As long as we are objective in our descriptions, I think we are covered for stuff like this as it will be down to how it is used. That is the big difference in the revision in my opinion. If we caption a picture as idiot who does not believe in vaccination or who thinks Covid-19 is a conspiracy then that might be dodgy I guess as it could be deemed insulting even if the person deserves it. Leave that to the publisher. Obscene would worry me if I did glamour or nude.

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1 minute ago, sb photos said:


Very true. I’m thinking specifically of deemed to be insulting or offensive. Sometimes half the placards at a demonstration could be deemed such by people with opposing views and is very subjective. All I do is record what is happening. This is potentially censorship of news and what in reality happens. 

 

Again I don't believe that is what Alamy intend here. Just be objective and leave the subjectivity to the publisher. As news it will be editorial only in any case.

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6 minutes ago, Cryptoprocta said:

An improvement on clarity, but still:

"4.1.6. the Content uploaded to the System will not be, or be deemed to be indecent, obscene, defamatory, insulting, racist, offensive, vulgar or violate publicity rights; "

How can we control what any other person will 'deem to be' any of these things?

Presumably an anti-vaxxer would deem images of anything to do with covid vaccination offensive, for example.

The clause 4.1.6. IS too relative and vague. Who uploads? Who decides if the content is indecent, obscene, etc? Who is responsible?

Using passive tense just blurs this clause. 

I guess one should use common sense, but even common sense is out of the window these days... 

 

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8 minutes ago, MDM said:

<snip>

 

I think the wording could be even more explicit though. Deemed racist, for example, could be interpreted as uploading a picture of someone who is behaving in a racist manner rather than what is really intended (in my opinion) which is that the uploaded material is not fundamentally racist including captions so we don't condone racism in the caption. Vulgar, indecent, insulting and obscene are very subjective and a big stretch in the 21st Century. 


i couldn’t agree more with your last paragraph above.

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Just now, MDM said:

 

Again I don't believe that is what Alamy intend here. Just be objective and leave the subjectivity to the publisher. As news it will be editorial only in any case.

Does 'assumed intention' have any currency in Law?

The wording is that the content uploaded will not be or be deemed to be ...

Yes, it's ambiguous: it could mean that end users or even those consume the end use will not deem them to be X Y and Z, but does that clause really preclude a lawsuit?

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