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Author Topic: Indemnity Section of the Contributor Agreement  (Read 5125 times)

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« on: January 09, 2011, 14:33 »
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Hi there. New indie here.

I've been following StockCube's Independence Blog for formerly exclusive iStockers who are taking the plunge as independents (I am one of these folks). She highlighted today a possible turnoff in the 123RF Photo Contributor Agreement.

Reference: http://stockcube-stockcube.blogspot.com/2011/01/new-agencies.html

Can anyone here shed a little expert light on this?

Point 3 under Indemnity states: "You agree to fully defend and indemnify 123RF, its employees, directors, and officers, and anyone else associated with 123RF, and each of their successors, licensees, and assigns free and harmless from any and all claims, liabilities, costs, losses, damages, or expenses, including attorneys' fees and expenses, arising from the breach of the warranties you so grant in Clause 10: Copyrights and Warranties."

Source: http://www.123rf.com/submit/agreement.php

On first read, that seems pretty scary. Do I really want to risk having to cough up potentially huge sums of money if there is a "breach of the warranties I so granted" in Clause 10? And how likely is that?

Upon reading Clause 10, I can't see breaking the rules. So is there anything, then, to worry about?

Does this point cause sleepless nights to 123RF contributors, or is it just 123RF covering their behind and so long as you adhere to the points in Clause 10 when you submit photos, you have absolutely nothing to lose sleep over?

Confused. Hope you can unconfuse me and put me at ease with submitting here. Advance thanks for your thoughts.


« Reply #1 on: January 09, 2011, 14:53 »
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I've never bothered with 123 but the Agreement looks OK to me. All they're saying is that if you upload images that break the rules then, if there is a subsequent cost, you may be liable. I don't see any problem with the photographer having to take responsibility for what they upload. If that worries you then just make sure you have indemnity insurance.

« Reply #2 on: January 09, 2011, 15:08 »
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Thank you, gostwyck. That makes sense then.

« Reply #3 on: January 09, 2011, 15:32 »
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That's the way I understand it too.

« Reply #4 on: January 09, 2011, 16:10 »
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I'm pretty sure there is similar stuff buried in most of the agreements -maybe in iStock's too - but it has been years since I read them in detail.

« Reply #5 on: January 09, 2011, 16:17 »
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Yes here it is, the exclusive's agreement from iStock:

"Indemnity
You agree to indemnify, defend and hold iStockphoto and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Exclusive Content (collectively, the "iStockphoto Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStockphoto Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim."

It's probably riskier and more draconian than the 123 one, given that iStock offers to indemnify buyers against legal action, thus seemingly making you liable for an action against a buyer that iStock may not want to bother contesting.

« Reply #6 on: January 09, 2011, 16:46 »
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Thank you, Blufish. And thank you for shedding some light on the commonplace nature of this arrangement in most of these agreements. Particularly for pulling up the specifics within the agreement over at iStock. Shows how closely I read over that contract!  :D

You three have been quite helpful. I'm not worried a lick, now. So thanks again. Hopefully this detailed clarification and insight has set Bridget's mind at ease, too.
« Last Edit: January 09, 2011, 19:03 by Risamay »


« Reply #8 on: January 09, 2011, 21:48 »
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......."iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim."

Not quite so benign as you may think.  The iStock extract quoted above is the real killer.  iStock can defend any action taken against them at their discretion, and they can do it without reference to you and YOU meet all iStock's costs. 

Indemnities are almost universally inserted into all serious contracts.  The clauses that lawers try to avoid or to moderate are those quoted above ie a unilateral right to defend actions without reference or agreement by the party that will be paying for that defence - in other words YOU. 

However, you also need to take a risk management approach.  By that I don't mean avoid all risk, but manage the risk.  Ask yourself, what is the probability that someting I do will result in sone legal action against me or agencies that I associate with, then ask yourself what will the likely impact be of any such action.

Provided we are diligent in regard to model/property releases, then the probability that an action will occur will be low.  And if an action does arise the cost is not likely to be high (eg a payout to a model or a property owner).  Therefore the overall risk of any litigation occurring is very low to negligible.  I would sign such an indemnity for any of my work.   And we really don't have any choice in any case.   

« Reply #9 on: January 10, 2011, 01:56 »
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So far, I have not heard of anybody suffering as a result of these clauses. There are many millions of images on sale and scores of thousands of photographers selling stuff, so the risk seems to be minuscule. There's no doubt, though, that if anybody was caught up in a case the consequences could be devastating.

I think Istock has said it will take responsibility for paying out on its guarantee to buyers that images are legal. But it looks to me as if there is one contract (for buyers) saying "if there are problems with an image we will give you thousands of dollars" and another contract for sellers saying "if we pay anything out because of your images you will have to foot the bill".

Of course, some old iStockers may feel that iStock is too honorable to break a forum promise just because it seems to have the legal right to do something nasty. And there may be others who don't have quite so much faith in the company.

Anyway, so far there is no word of this ever being triggered.

« Reply #10 on: January 10, 2011, 08:51 »
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There have been cases that completely fall into very gray areas as well.

For example, many photographers seem to think that fair use means "as long as I take this image in a public place, it's OK.", or when a building is built, maintained and paid for by taxpayers' money, so it doesn't require an Property Release.

We'll, we have had several authorities coming to us, claiming that a certain site, building, etc. is within their trust and hence, want to sue etc. etc. During that time, who will bear the responsibility and brunt of any legal action?

So do have a thought before you write to us and telling us that such and such a place doesn't require an MR. Have you checked? It's YOUR responsibility.....

Alex.

For educational purposes, can you tell us which properties / government authorities have objected to use of images at your site.  Is there a 123RF (property release issues) wiki like the shutterstock and istock wiki's? 

« Reply #11 on: January 10, 2011, 21:27 »
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Hi trekandshoot,

You may refer to the quote below for property release issue.

Have a nice day.


Cheers,
Anglee

Hey everyone,

Good day to you.

Kindly take note of the following references of items that 123RF.com will not accept due to copyright reasons at http://bit.ly/ffZKSh . This list is by no means exhaustive but these are the ones that we are well aware or have been made aware of. 123RF.com shall try its best to update this list as well as the references to the various sites.

Wishing you and yours a Merry Christmas & a Happy New Year!


Warm Regards,
Anglee

« Reply #12 on: January 10, 2011, 23:12 »
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thanks for the list. I'm surprised to see it includes a book written in 1865, a fairy tale, and a 400 million year old (or older) rock, but I can see the desire to CYA, and I won't be uploading any images of these.

« Reply #13 on: January 12, 2011, 13:08 »
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There have been cases that completely fall into very gray areas as well.

For example, many photographers seem to think that fair use means "as long as I take this image in a public place, it's OK.", or when a building is built, maintained and paid for by taxpayers' money, so it doesn't require an Property Release.

We'll, we have had several authorities coming to us, claiming that a certain site, building, etc. is within their trust and hence, want to sue etc. etc. During that time, who will bear the responsibility and brunt of any legal action?

So do have a thought before you write to us and telling us that such and such a place doesn't require an MR. Have you checked? It's YOUR responsibility.....

Alex.

Thank you, Alex.

So far, I have not heard of anybody suffering as a result of these clauses. There are many millions of images on sale and scores of thousands of photographers selling stuff, so the risk seems to be minuscule. There's no doubt, though, that if anybody was caught up in a case the consequences could be devastating.

I think Istock has said it will take responsibility for paying out on its guarantee to buyers that images are legal. But it looks to me as if there is one contract (for buyers) saying "if there are problems with an image we will give you thousands of dollars" and another contract for sellers saying "if we pay anything out because of your images you will have to foot the bill".

Of course, some old iStockers may feel that iStock is too honorable to break a forum promise just because it seems to have the legal right to do something nasty. And there may be others who don't have quite so much faith in the company.

Anyway, so far there is no word of this ever being triggered.

It is confusing, over at iStock.

No matter where I submit, I always do my part to stay within the rules and hope for the best. Though it seems like there are gray areas (as Alex pointed out) that may catch anyone by surprise, if we aren't careful. That said, I'm glad that generally, there aren't myriad stories of big lawsuits and suffering as a result of these clauses.

thanks for the list. I'm surprised to see it includes a book written in 1865, a fairy tale, and a 400 million year old (or older) rock, but I can see the desire to CYA, and I won't be uploading any images of these.

Yes, thanks for the list. That is quite helpful.


 

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