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Keith Douglas

Who is responsible for how an image is used?

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The thread I was replying to has disappeared so I've started this new one on the specific issue that I was addressing. It relates to the automatic flagging of an image as Editorial Only if there are no property and model releases available. I have reservations about this approach. 

 

I take the view that I make my images for sale and it us up to the buyer to decide whether the image is suitable for their intended use. While I am happy to provide accurate information about what is available in the way of releases, I don't want anything to do with the buyer's decision about the image's  suitability in their particular application. 

 

I fear that once we move away from providing the facts and automatically providing opinions, however well intended, we open ourselves up to someone coming back later and using that opinion against us. If a legal claim did ever happen, it wouldn't be long before a lawyer was claiming that the photographer had said that the image could be used for Editorial Use, not that it might be suitable for Editorial Use. 

 

What do others think? 

 

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I agree entirely, but with Alamy's risk aversion that is probably the best option.

 

I have great difficulty ticking the boxes saying "releases required". How do I know? I don't how any buyer intends to use it and for what purpose or in what jusridiction. I would argue that experienced international IP lawyers could not make that call at the image listing stage; they would need a lot more information to answer those questions which would only be available at the sale stage, at the earliest, they would probably want to see the layout as well! But we photographers are asked to make that call, and indemnify Alamy into the bargain (an IP lawyer wouldn't).

Edited by Martin P Wilson

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Evidently any references to the locked thread are being removed.

My understanding is that a photographer could only be liable for misrepresentation. So any consequence of an agency policy couldn't be laid at his door.

But no, I'd like to be left to tick the boxes.

When my three images from the latest bit of sport go back up, that will mean I have a total of 3 images with restrictions. That number will not increase by any action of mine.

I tick 'releases required' unless it's a scenic or a public place. That said my policy seems to be a bit random- about half-and-half.

Edited by spacecadet

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"Alamy makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Neither Alamy nor its contributors shall be liable to you or any other person or entity by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Alamy, its servants or agents or otherwise) which arises out of or in connection with this Agreement, even if Alamy has been advised of the possibility of such damages, costs or losses. Alamy’s maximum liability arising out of or in connection with your use of or inability to use the Image (whether in contract, tort or otherwise) shall, to the extent permitted by law, be limited to five (5) times the value paid by you for the relevant Image."

 

RM, in that case, EULA but  check your indmenity insurance is up to date......

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There we are. Only fraudulent misrepresentation. I'm happy with that, and I don't have indemnity insurance.

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My four-figure Alamy sale was an unreleased image with people, real estate property and a famous brand name. The client - a UK advertising agency producing a campaign for an international bank - obviously knew what they were doing because they removed photoshopped the image quite radically and removed anything that would cause an issue. 

 

If I'd put editorial only restrictions on it, I'd be several thousand dollars poorer now ;-)

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The publisher is ultimately responsible, but may try to share the responsibility with you the photographer, by legal means, if there is a problem.

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A wise man once said (on this forum) that in legal cases "The ball just keeps on bouncing"

 

Kumar

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....and in the US, it's one of those balls they stick in a big gun with powder behind it.

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