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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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On 17/05/2021 at 12:13, Joseph Clemson said:

While the changes to commission are, not surprisingly, attracting lots of comment, it's worth noting that there are a considerable number of other changes too, detailed in the change of contract summary.

 

I haven't gone through this in details, but I do notice that they seem to be strengthening or making more explicit the requirement for a contributors to have copyright or the legal right to licence any content they submit. There seems to be more than just money to consider in whether to accept this new contract or say bye-bye to Alamy.

The changes all look clearer and more reasonable to me but I will check with my insurance company to be sure.  Thank you to Joseph and many others who picked up on this and dissected it, leading to the changes -  I'd definitely not have read the detail otherwise 🙏😃

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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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5 minutes ago, Cryptoprocta said:

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?

 

Deemed by Alamy would be better but they don't examine content. It is a gigantic improvement over the May 17th version. I can't see them changing it again so if it is a deal-breaker than time to resign I guess. With my content I am not at all worried by this. 

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12 minutes ago, MDM said:

 

Deemed by Alamy would be better but they don't examine content. It is a gigantic improvement over the May 17th version. I can't see them changing it again so if it is a deal-breaker than time to resign I guess. With my content I am not at all worried by this. 

Hahaha, "I'm a libertarian speed fiend and I deem your photo of a  'speed limit for safety reasons' sign to be offensive."

I'd hope the Man in the Clapham Omnibus might find in your favour, but who wants to be the test case?

Edited by Cryptoprocta
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In some ways the revisions are worse.

For example, I now appear to be liable merely for uploading images which might violate publicity rights (I'm thinking of France and Germany, where I have plenty of images of individuals which might if published in those countries) rather than being liable on publication. I hope I'm wrong- these are regular sellers.

Edited by spacecadet
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1 hour 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

 

 

Ignorance of the law/rules is not a valid defence, so it may not include a "deliberate lie".

 

For example not finding out commercial distribution of image taken in a paid venue, and assuming this meant it was ok for "editorial purpose" is on the Contributor.  

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