Promises, promises

Before we look in detail at Alamy's response to our criticism of their new contract it’s worth taking a look back at the bright new photographer centred business that Alamy so proudly offered us at its launch. This is what they said:

• “We place our contributors at the centre of our service”
• “This is just the start of the new way forward for the creative mind.”
• “Only alamy.com will sell the images you supply us with.” 
• "On every sale alamy take 10% commission + about 3% credit card fee. YOU GET around 87% of the sale!!!! YES! 87% !!!"
• “It’s not like you are entering an arrangement that ties your images up for a lengthy amount of time.”
• “We have no interest in making changes to the contract to the detriment of photographers now or in the future.” 
• "How can we be assured that alamy.com will not increase the commission in their favor in the future? It would not be in alamy.com's interest to change terms to the detriment of our contributors, since our success depends on attracting large numbers of contributors.”

Every one of those promises has now been broken.

Even so, it’s encouraging that Alamy are engaging with us over this batch of radical changes to the contract that they are imposing. We welcome their response although much of it is just vague reassurance and doesn’t really go anywhere – “We’ve made changes to reflect how we work, to tidy up language and to clarify clauses.” and “We believe the changes we’ve made are for the benefit of our photographers and are an honest reflection of the way we work.” We won’t take up readers’ time with responses to such pabulum.

Hotel California

It’s the specifics that concern us and there we get no comfort. Alamy write:

“1) Infringements – We have listened to our photographers …snip… We are now working with PicScout to track down and get payment from infringers.”

[This paragraph has been edited on December 14, 2015. See note at the end of this article.] When there are settlements they are at the same low prices as are paid by honest users. A customer using images without a licence rarely pays more if detected and pays nothing if undetected. This promotes dishonesty and our representations to Alamy over many years have not changed this.

Alamy write “We aren’t stopping photographers from chasing their own infringements.”

This misrepresents the contract. Clause 4.12 states:

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.

This DOES stop us pursuing infringements - even years after the contract has ended and the image deleted from Alamy. It doesn’t only apply to Alamy’s customers but even to an unconnected infringer who has lifted the image from a customer. Even when the image is not sourced from Alamy this muddies the waters to the extent that we would often be unable to take action.

Download control at Alamy HQ in 2006. Photo © David Hoffman.

Alamy tell us:

“4) Downloads – We track all downloads from Alamy and regularly undertake costly and thorough audits of our customers. Our work with PicScout will further strengthen our handle on this. It’s incorrect to suggest we’ve a laissez-faire attitude to customer downloads.”

EPUK members have plenty of examples of publications by Alamy customers unreported to us by Alamy even years after publication. [This paragraph has been edited on December 14, 2015. See note at end.] Alamy’s claim of “thorough audits” are disingenuous. They do not reflect the reality.

Alamy offer this reassurance:

“We’ve always made it very easy to join Alamy and similarly we make it very easy to leave. We don’t believe photographers should be tied in to long term contracts.”

Photographers are calling this The Hotel California contract. You can check out but you can never leave. Clause 6.4.1 is clear that for every image they have ever licensed “This clause will remain in full force and effect even after termination of this contract or deletion of the Image/s.” There’s no time limit. It’s forever. So when Alamy write “We don’t believe photographers should be tied in to long term contracts” we end up mistrusting everything else they tell us too.

Trying to be fair, the clause does talk about similar reuse but that’s vague and subject to “Alamy’s reasonable opinion”. If we don’t think their opinion is reasonable it would be too expensive and uncertain to dispute their decision. That leaves Alamy entirely in control and leaves contributors powerless. That cannot be an accident.

Alamy try to calm our fears of ever wider extensions of use with “[this] is incorrect as you already have all the information available regarding how the image was originally sold”.

But we don’t. Until a year or so ago licence reporting was minimal, incomplete and often seriously inaccurate. Recently the licence reports have been more extensive – but they are still often incomplete and inaccurate. Worse, individual and unreported variations by sales staff can leave damaging ambiguities in the extent of the licence of which we remain unaware.

Zombie images

Alamy respond to our:

“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.”

with:

“Customers can’t download imagery that has been deleted or is from a terminated account.”

This too is disingenuous. Firstly they CAN download them for anything that Alamy considers to be some kind of a reuse. But we are also referring to the (we estimate) millions of files downloaded but not licensed. There are an enormous number of files that have no licensing record and of which Alamy will not tell us anything as to which they are, who downloaded them or when.

We have members reporting images on display long after deletion/termination. Alamy do remove them when this is reported but even if the photographer discovers this it's often too late.

For most of the time that they have existed Alamy routinely and in the face of our continued protests stripped all metadata. They do now include some of that metadata but when Alamy write:

“our terms and conditions with customers are very robust on requiring that they retain the metadata in the images.”

they are misleading us. The T&Cs may well be robust but Alamy is far from robust in enforcing them. I know of no case where Alamy has taken action over such (illegal) metadata stripping and it is still rife among their clients.

There is more but it becomes tediously detailed and too time consuming in view of Alamy’s adamant resistance to photographer requests for change.

From a personal point of view - over the years I have made good money from Alamy and have enjoyed my relationship with them. They are likeable, open people. However the way their business has flooded the publishing world with effectively uncontrolled numbers of copies of our work without telling us of this practice or even the most basic reporting coupled with their current determination to control all uses (licensed and unlicensed, now and forever) of these files makes terminating my contract essential.

Bottom line: these terms are unacceptable for me and for many of my colleagues. I’ll wait until the very last minute in the hope of more reasonable terms from Alamy but I’m not holding my breath and I expect to terminate my Alamy contract on the 31^st of March.

So long, and thanks for all the fish, 

David Hoffman

Note added March 13, 2015: If you are leaving Alamy we have a step by step guide here.

Note added December 14, 2015: Two references to PicScout and Alamy working together for several years were erroneous and have been removed. Picscout ran a test with Alamy several years ago but that was of limited duration and there was no further infringement work undertaken for Alamy by Picscout until early in 2015.

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Your comments matter. Please add them to the other comments at the foot of Alamy's own piece defending their new contract.