March 5, 2015 - Alamy have now responded to our open letter. You can read their reply here. Comments to this article have now been turned off, so please comment there.
In my email on Friday I wrote that we would be writing to Alamy re the difficulties we see with the contract amendments. Since then we’ve become aware of more widespread concern among Alamy contributors in general, not only EPUK members.
Rather than keep this a conversation between EPUK and Alamy we feel that it would be better to make our concerns public and so we are publishing an open letter to Alamy on EPUK outlining the problems we see. I do hope that you or your colleagues will add your comments.
Alamy have a record of coming up with constructive solutions to impossible problems. We all hope that you can do that again!
for the EPUK Moderators
PROBLEMS WITH THE ALAMY CONTRIBUTOR CONTRACT AMENDMENTS 02/2015
1) AMENDMENT 6.4.1
When re-licensing Images that have been previously licensed for a particular use ("Previous Use"), if in Alamy's reasonable opinion the use to which the Image/s is to be put is the same or closely similar to the Previous Use (including but not limited to extensions of print runs and foreign language versions), Alamy is permitted to grant a re-use licence on the terms and conditions, restrictions and availability in place at the time of the original licence. This clause will remain in full force and effect even after termination of this contract or deletion of the Image/s.
Alamy, it seems is trying to establish a perpetual and irrevocable contract with images that they have previously sold on our behalf at a time when this was not the case, which allows them to continue selling them even after the contract with the photographer has been terminated. While this may have advantages for Alamy it has significant disadvantages for the photographer. The provision would last for the full term of copyright and we see it as unreasonably extensive.
a) Amendment 6.4.1. (last sentence: “This clause will remain in full force and effect even after termination of this contract or deletion of the Image/s” means that the photographer, having left Alamy will never regain full rights over an image that Alamy has previously sold. Such images may never be sold with exclusive rights because Alamy retains a perpetual right to re-license the image to previous buyers. The contributor has no way of knowing to which images this applies and so their whole collection is devalued.
b) It opens up the potential for litigation if the photographer licenses an image to a client on terms which a subsequent Alamy sale may violate and, as the agreement between the photographer and Alamy has ceased, there would be no way of finding out what those terms may be.
c) Because of Alamy’s policy of allowing some of their clients unlimited downloads while refusing to identify to the photographer to whom sales are made it would become very difficult to identify illegitimate uses of images and would often make enforcing photographers’ intellectual property rights impossible in practice.
d) Where infringements are found, the provisions of Clause 6.4.1 offer the infringer the ability to purchase a retrospective licence with the specific purpose of avoiding litigation by the photographer.
One Alamy member said –
“The contract allows them to issue licences to restore legality to forgetful and cheating customers, and to keep on issuing licences on photos that clients have downloaded and kept on file even where you've subsequently withdrawn the material.”
e) The new terms also appear to apply to all the images that were ever downloaded from the Alamy servers. Not just to those that remain once the new contract takes effect.
2) RETROSPECTIVE LICENSING
Alamy seems to have a policy of issuing retrospective licences to cover past unlicensed publications of images sourced from them. Alamy should NOT be issuing a retrospective licence after the infringement has been reported. There is no legal basis for such a licence. The earlier publication was unlawful and the issue of a licence later cannot make that earlier unlawful act lawful.
In some cases Alamy has also issued retrospective licences for images that they hold but which were sourced elsewhere by an infringer. One Alamy member has related the following -
I was chasing after a company who were using my image without my permission.
In the emails I received from the infringer, they said we have now found your image on Alamy and have just bought it for £39.00. The infringer went on to say they were proving a point on how much my image was worth.
During the emailing, the infringer sent over a copy of the online chat between themselves and Alamy.
Here is a part of it:
Infringer: One of our interns used a helter skelter image on Facebook (but when we found out we took it down). Nonetheless, would it be possible to retrospectively purchase the rights to use the image so we avoid an infringement?
Infringer: We're a small company (5 employees).
Alamy: Thanks for letting us know ****, it wouldn’t be a problem to retrospectively license the image
Alamy: as for the licence would it just be used for website?
Infringer: It was used on Facebook, Twitter and a blog (all are currently removed). They are the only places. It also was edited to include some text. Can I send you an example through this chat feature to check it's acceptable?
Alamy: if some text has been added which isn't defamatory or derogatory that's fine as we allow minor edits to the images.
Alamy: I'll just check the best licence for you, wont be a minute
Alamy: When the image was used over the different sites had the design changed or was it all in the same context?
Alamy: so essentially was it used for the same campaign
The online chat goes on and the Infringer is ultimately buys the image online and then requests the invoice is backdated.
Infringer: It says that it's valid from 3rd Sept, but we really would like it to cover us retrospectively
Alamy: ah sorry my mistake
Alamy: i'll change that now
Alamy: Ok the way need to get this done from February is you'll need to purchase the image as it currently is
Alamy: Once the invoice has been raised for the purchase I can then go in and change the invoice details so in the additional notes would be “Retrospective licence to run from 1st February 2014 - 30th January 2019.
The result was a licence purchased solely to block ongoing litigation even though the infringed image was not obtained through Alamy in the first place.
3) TERMINATION OF CONTRACT
CLAUSE 20 TERMINATION
20.1 You may terminate this contract:
20.1.1. on 45 days prior notice to Alamy at any time;
20.1.2. Immediately by written notice to Alamy if Alamy:
184.108.40.206 breaches any terms of this Contract which breach is not capable
of effective remedy or;
220.127.116.11. breaches any term of this Contract which is capable of remedy
but which is not remedied within 30 days of the date of a notice specifying
the breach and requiring that party to comply with that term.
18.104.22.168 enters into insolvent liquidation.
22.214.171.124. ceases to carry on its business of operating the System.
126.96.36.199 where Alamy gives 45 days notice to vary the contract pursuant to
clause 19.1, by written notice to Alamy at any time during that 45 day
period expiring at the end thereof.
A contributors contract with Alamy can be cancelled subject to 45 days notice.
A member cancelled their contract with Alamy. Under clause 20 the last date when images could be sold was 20.10.2014. They wrote –
The last day for selling and displaying my images was the 20th October 2014. Looking through the Alamy website,(four months later) my images are still being displayed, even though it says above all images ‘not for sale’.
Another image of mine was sold end of Jan 2015, Again, Alamy stated that the buyer was in talks prior to my contract terminating.
Another member has also raised this same issue. While Alamy has the right to continue and to renew deals that were already in place at the time of termination it seems wrong to display the images after deletion. It also seems wrong for them to interpret a use following termination as widely as they do. Reprints or run extensions might be reasonable but not new editions, different media or other publications.
4) SECONDARY RIGHTS & COLLECTING SOCIETIES
CLAUSE 28. Collecting societies
You agree that where you cannot claim yourself for sales made by Alamy
but where we can claim on your behalf including, without limitation,
through collecting societies, that you give us the right to collect
any money due to you. Where there is the option for you to claim
yourself, you may opt to do so or for us to claim on your behalf.
Where we claim on your behalf you agree that we will recoup our
external costs (if any) then share any remaining amount equally with you.
Alamy wish to make a DACS claim on behalf of its members if they are unable or do not wish to do so themselves.
Because Alamy refuses to identify individual sales to members it is impossible for individual members to make a full and accurate claim to any collecting societies.
5) AMENDMENT 4.1.2
Where Alamy has Licensed an image to one of its Customers or if an Image has been sourced directly or indirectly from the Alamy System and or if the image is solely available via the Alamy System and the systems of its Distributors, You agree that you will not contact the Customer or user of the Image for any reason pertaining to this sale or the use of the Image. This includes, without limitation, in relation to copyright Infringements where the Image was sourced from Alamy.
Alamy want to prevent photographers contacting their customers over copyright infringements or for any other purpose where the image was sourced via Alamy or its distributors.
This may have been acceptable if Alamy had retained a tight hold in controlling access to downloads and maintained metadata integrity. However, without consultation, Alamy diluted that over time to the point where very large numbers of files (estimated to be in the millions) have been freely downloaded without checks as to usage, instead simply relying on clients (many of whom have been known to reproduce images without reporting that fact) reporting each use properly.
This has put our ability to take action over the infringements of our work that we find published on the web very largely into Alamy's control. This is particularly egregious where no paid publication has occurred or where the infringement has been copied (and sometimes re-re-re-copied) from an unpaid or low paying Alamy related source.
As one member wrote –
I am not supposed to contact anyone that has downloaded an image from Alamy, to chase up infringements. But if Alamy is not my exclusive agent (it isn't) and does not tell me who has downloaded images (it doesn't, nor who the legitimate downloads and users are), and also refuses to tell me these (it won't, I've asked), then how am I supposed to know if I am breaching my contract with Alamy?
Alamy seems to simply rely on clients to report their image use honestly when many have been known to reproduce images without reporting their publication.
This is a very different way of working from that in place when Alamy began and it has led to a very large number of members’ files having been distributed to an unknown number of Alamy clients. Many of these files had their metadata removed by Alamy before distribution. Many of the clients will have redistributed those files outside of their organisation. No matter how remote an infringing use may be from the client originally downloading the file Alamy prevents us from taking any action to protect our copyright.
No notification to us that this was occurring has ever been given. We have no way of knowing which files have been distributed, to whom or who now has copies. We are unable to control infringement when the file came from Alamy and our ability to identify and follow up on infringements when the file was sourced elsewhere is seriously undermined.
6) CLAUSE 15.1
You agree that the Images may be used at Alamy's option without charge and without prior consent or approval from you in Promotional/Marketing material designed to promote sales of Images and/or to enhance awareness of the Alamy name/brand or that of the individual Contributor. You agree that any such promotional items may be distributed by Alamy worldwide for up to two years, notwithstanding the earlier termination of the Contract for any reason. For the avoidance of doubt Promotional/Marketing material also includes articles and interviews featuring Alamy and/or its imagery, social media and search engine listing and promotion including but not limited to 'Google Images'.
Alamy request the right to use members’ images to promote Alamy and/or a photographer whom they no longer represent without their prior approval/permission.
This presents a problem where Alamy are not the sole distributor of a member’s images. A scenario could present itself where the member has agreed a sale outwith Alamy on exclusive terms and where usage by Alamy for promotion may violate this.
An ex-Alamy photographer may be exclusively represented by another agent and use of their material to promote him/her or Alamy would be deceptive and may breach the agreement between photographer and new agent.
In any case the period of two years is unreasonably long. Three to six months would be more appropriate.
7) PERSONAL USE LICENSING
The facility for (presumably) non-professional image buyers to download digital images for personal/home own use creates a real danger of infringement. How long would it take for something licensed for home use to appear on social media, then scraped from a Google search and then subject to a commercial infringement?
Additionally it undermines the quality control that members may usually insist on if the file is printed out and may undermine the photographer’s own print sales.
The low pricing makes it a very attractive option for dishonest buyers, especially if there is the ability to download 50 megabyte files..
8) CLAUSE 1.3.4
Delete any Images after one hundred and eighty (180) days notice. On image deletion Alamy will cease to grant Licences for the Image so deleted (but without prejudice to any Licences which may subsequently be granted for Images already downloaded, or where any Image is re-used or where Alamy entered into negotiations to licence an Image prior to deletion).
Alamy will delete images upon request after 180 days notice but will continue to grant licences if a customer has at any time entered into negotiations to buy.
9) CLAUSE 12.6
Amounts due to you where you are not paid in US Dollars shall be converted from US Dollars to the currency for payment at the rate provided by Alamy or Alamy's Payment provider on the date of payment or the preceding UK working day. If the rate is provided by Alamy it will be within 2.5% of the spot rate on that day.
If Alamy does not pay you in US dollars, Alamy may increase the currency conversion charge to the contributor from 2% to 2.5%, a 25% increase.
10) AMENDMENT 16.2.3
If you take action then Alamy's sole obligations shall be to at your request and cost, provide testimony in any action which may be brought by you by verifying the terms of the contract entered. Prior to giving this assistance Alamy may require you to have indemnified Alamy for all of the costs and expenses of any such action including at Alamy's discretion providing and securing the costs of Alamy's legal and other advisers.
Unlike under the previous provisions Alamy will no longer provide the member with information from its records should the member find themselves taking legal action against the Alamy customer.
This seems to set Alamy and the contributor in conflict with each other, with Alamy siding with the customer in the event of a dispute.
1) Amendment 6.4.1
Re-licensing rights on terminated Alamy/photographer contracts and/or on deleted files should only be permitted for a period of six months after termination and where the sale process was already under way before termination/deletion and after that only with the specific permission of photographer/copyright holder.
2) Retrospective Licensing
Retrospective licensing should cease immediately other than in exceptional circumstances. Discounts on licence fees should be conditional on full and timely reporting of the relevant use.
3) Clause 20, Termination
i) Ensure that cancellation rules are applied so that the display of former members’ images and/or deleted images ceases as soon as is practicably possible following deletion or termination.
ii) Licensing for new editions, different media or other publications in respect of terminated members or deleted images ceases.
4) Secondary Rights & Collecting Societies
Sufficient disclosure by Alamy of information relating to members’ sales to allow claims for secondary rights payments to be made to collecting societies.
5) Amendment 4.1.2
i) Amendment 4.1.2 is removed and Alamy, while retaining the right to pursue all infringements stemming from their supply (as is the case now) adopt the default position that, unless having a specific need to pursue these themselves, instead offer the contributor the opportunity to do so and provide such information that they have to assist the contributor. Any fee that would have been due to Alamy to be paid to them out of the proceeds.
ii) Alamy re-establish positive control over download privileges.
6) Clause 15.1
Alamy contacts the member before use and gives them the option to decline.
7) Personal Use Licensing
Allow members to opt out of Personal Use Licensing.
8) Clause 1.3.4
A clear definition of "entered into negotiations" is required otherwise this is too vague. ‘Negotiations’ could be just a vague licence quote obtained for guidance many years ago. Simply allowing a download could be claimed to be the initiation of a negotiation.
9) Clause 12.6
Alamy should explain why they have increased their charge on currency conversion by 25% when overall bank transfer fees have become much cheaper.
10) Amendment 16.2.3
Alamy should assist the member in providing reasonable information on the customer from their databases as they did under clause 188.8.131.52 (If you take action then Alamy's sole obligations shall be to at your request and cost supply you with the information on its database relating to that Customer).
Note added March 13, 2015: If you are leaving Alamy we have a step by step guide here.
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