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Author Topic: Alamy photographer sold Nadav Kander Portrait to Big Issue, Copyright Fail!  (Read 1951 times)

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« on: July 06, 2019, 12:04 »
+2
An Alamy Photographer has taken a photograph of a famous Nadav Kander portrait of David Lynch at an exhibition and it has been licensed to the Big Issue through Alamy.

You can read about it here https://www.instagram.com/p/BzicPZ3HdAZ/

I'd advise the photographer that made this silly mistake to call him ASAP and apologise before he sues you!



« Reply #1 on: July 19, 2019, 12:45 »
0
Your weak apology to blame your wife went down like a house on fire. Take responsibility!

Read update here:

https://www.instagram.com/p/B0GlxWPnzhB/

Does anyone know the photographer I heard it was "David Crausby"?

Only way to resolve this is to pay the requested charity promptly. You might not be aware but Nadav Kander is extremely wealthy and powerful and could sue you for a lot of money.

ShadySue

« Reply #2 on: July 19, 2019, 13:12 »
+2
The Big Issue cropped a photo which was on Alamy of a photo in a frame at an exhibition, which had some context and a window shadow. They have now accepted full responsibility.
[urlhttps://www.amateurphotographer.co.uk/latest/photo-news/big-issue-apologises-deeply-nadav-kander-cover-129497[/url]
Note that cropping an editorial photo to remove context is against Alamy's rules:
https://www.amateurphotographer.co.uk/latest/photo-news/big-issue-apologises-deeply-nadav-kander-cover-129497
"Images of in copyright artwork may be cropped or otherwise edited for technical quality, provided that the original context and setting of the image is not altered."
« Last Edit: July 19, 2019, 13:51 by ShadySue »

ShadySue

« Reply #3 on: July 19, 2019, 13:39 »
0
Your weak apology to blame your wife went down like a house on fire. Take responsibility!
Read update here:
https://www.instagram.com/p/B0GlxWPnzhB/
For clarity, this second insta post refers to an incidence of (apparently) the same photo being used in Rolling Stone Italy.
You can see it by googling 'rolling stone italia David Lynch' and checking the pic. It's the third photo and the window shadow can clearly be seen. The pic may have been cropped in, it looks that way on the Google search pic.
« Last Edit: July 19, 2019, 13:58 by ShadySue »

« Reply #4 on: July 19, 2019, 13:54 »
0
The problem is Nadav is threatening litigation and he has a lot of money to hire a top London Attorney.

I would not want to spend thousands of $$$$$ defending myself in court. What if the court ruled against me?

Lose my house? Be declared bankrupt!

The apology given was very weak which infuriated Kander even more.

Now he has to pay up to a charity. What next if he doesn't pay? Go to court! Risk losing a lot. It's a gamble I would not want to risk.

ShadySue

« Reply #5 on: July 19, 2019, 14:03 »
0
I'm not making any comment on the degree of responsibility of the photographer. That would depend a lot on e.g. whether his image was a Live News photo of e.g. the opening of the exhibition, and how the image was originally captionned. IIRC, there was a label on the wall in the Alamy pic which presumably indicated the origin of the pic. and clearly showed that the tog was not trying to pass it off as his own work.

However, I've learned something via this as I'd never heard of Nandar, and possibly not of David Lynch, before. GIMF.
« Last Edit: July 19, 2019, 14:12 by ShadySue »

« Reply #6 on: July 19, 2019, 15:06 »
+1
I'm not making any comment on the degree of responsibility of the photographer. That would depend a lot on e.g. whether his image was a Live News photo of e.g. the opening of the exhibition, and how the image was originally captionned. IIRC, there was a label on the wall in the Alamy pic which presumably indicated the origin of the pic. and clearly showed that the tog was not trying to pass it off as his own work.

However, I've learned something via this as I'd never heard of Nandar, and possibly not of David Lynch, before. GIMF.

It's an interesting topic. Who is responsible for infringement?

The photographer took a picture "of" a picture that was not cropped. So there is some 'freedom' here (i.e., otherwise other than nature shots, or shots with absolutely *no* identifiable features of any person/business/art work/etc - you couldn't resell. I.e., say you had a city picture, with 1/32 of that shot containing a billboard for a 'coca cola' advertisement.

Then... the person who purchased the picture cropped it (i.e., say to 'just' the coca cola' advertisement).

Is the onus really on the 'photographer' - or - rather should it be the company that used the "cropped" image knowing full well it was not in the context of the original picture? (and might be brand/trademark issues).

In this case - (while I haven't "seen" the original photo, but from what was written it was clear that it was a photo "in" a frame, i.e., so someone seeing the original picture would know that it was a portrait on a wall)... I am thinking the onus would be on the actual company?

ShadySue

« Reply #7 on: July 19, 2019, 15:20 »
0
I'd think the main responsibility was those who cropped in on the image. Especially because, as journalists, they'd be expected to know the rules.

That rule of Alamy's isn't at all easy to find. For example, there aren't links from editorial file pages to the terms of use. Nor from the main buyers page.

However, I am not a lawyer, and sometimes the Law does not decide as we might expect.

(I have seen the original image as it was on Alamy, as it was on Google for a few days after it was removed from Alamy.)

Another thing perhaps (IANAL) pointing to more responsibility falling on the publishers is that there are lots of  'direct' images of David Lynch available from Alamy, yet they chose to buy that one and crop it in.
« Last Edit: July 20, 2019, 04:40 by ShadySue »

« Reply #8 on: July 20, 2019, 05:02 »
0
What is the reason for those updates on the story?

That was a failure on many levels. Gues here we are interesting how the agency reacted.

No reason for more  drama over and over every new response from any side.

:/

ShadySue

« Reply #9 on: July 20, 2019, 05:16 »
+7
No need to read the thread if you're not interested.
I'm certainly interested in how this pans out, but there are many threads here which hold no interest for me, but have plenty of  interest for others. Just follow the threads you have an interest in and ignore the rest.

« Reply #10 on: July 20, 2019, 06:33 »
+2
This is an important issue because the main product agencies sell is not our photos.  It's not the license.  It's trust.  Customers need to trust that the product they are getting is not stolen property.  Customers need to trust that an angry artist wont crawl out the internet demanding injunctive relief and removal of published material.   When you receive a large license it's not luck.  It's often a corporate buyers legal department rejecting the standard click license and paying for additional guarantees and insurance.  Companies like Disney have buildings full of lawyers just to review (and alter) rental agreements.  Without trust agencies have nothing.  This issue and Shutterstock's (stupid) policy of leaving known thief accounts in place while removing a shot or two are highly damaging.  Agencies would be wise to place integrity above short term income. 


« Reply #11 on: July 20, 2019, 12:03 »
+3
Lots of failures here. Failure of the "photographer" to take responsibility, to act honestly as an artist, to control their Alamy account (his wife was uploading to it), failure of Alamy to recognize an image that shouldn't have been available for commercial use without questioning its origin (it looked like a gallery image with wall placard), failure of the publication (what art director approved this without questioning the uncropped image), etc. What a mess.


ShadySue

« Reply #12 on: July 20, 2019, 13:31 »
+3
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor.*
2. What makes you think it was available for commercial use?

*iS / Getty does check, and builds a wide fence around the law, but even correct editorial annotation doesn't stop images sold from there being used commercially, either by buyers or by image thieves.
« Last Edit: July 20, 2019, 14:16 by ShadySue »

« Reply #13 on: July 20, 2019, 14:21 »
+2
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor.*
2. What makes you think it was available for commercial use?

*iS / Getty does check, but even correct annotation doesn't stop images sold from there being used commercially, either by buyers or by image thieves.

I like Alamy so I don't want to be too critical but perhaps they should check IP and commercial vs editorial designation.  Contributors are likely to make mistakes.

Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product. 


ShadySue

« Reply #14 on: July 20, 2019, 14:38 »
+2
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor.*
2. What makes you think it was available for commercial use?

*iS / Getty does check, but even correct annotation doesn't stop images sold from there being used commercially, either by buyers or by image thieves.

I like Alamy so I don't want to be too critical but perhaps they should check IP and commercial vs editorial designation.  Contributors are likely to make mistakes.

Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product.

I saw the original picture, it was online for a few days after Alamy deleted it. The original picture was on a frame, on a wall in an exhibition with a wall sign and showed distinct shadows from a window. I didn't see it on Alamy, so I don't know how it was captioned, but it seems unlikely the photographer was trying to pass it off as his own work. The BI bought it and cropped it right in to the photo only and did at least some work to mitigate the window shadow across the photo. Rolling Stone seems to have left the shadow in as it was on the original, and I'm not sure via google if they cropped the image in too, but it looks like they did.

I also don't know whether these two end users credited the image to Nadav Kandar, only to the Alamy tog or not at all.

So the buyer bought a legitimate product, but the end users went against Alamy's terms of use (quoted and linked to above) which say editorial images should not be cropped to alter context.
Looking at it logically, and not necessarily legally (they're not necessarily always the same thing), the only defence the end user/s could have is that that particular piece of information isn't easy to find*. UNLESS buyers are required to have signed their agreement to it when they sign up as buyers (I'm not a buyer, I have no idea).

*However, you'd think professional photo editors/art directors should know not to crop an image to alter its meaning. Unlike, for example, Joe or Jane amateur blogger. In Scots Law (I don't know much about English Law) that sort of thing (expecation of professional knowledge of a section of the Law) holds quite a bit of weight.
« Last Edit: July 21, 2019, 09:27 by ShadySue »

« Reply #15 on: July 20, 2019, 14:49 »
+1
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor.*
2. What makes you think it was available for commercial use?

*iS / Getty does check, but even correct annotation doesn't stop images sold from there being used commercially, either by buyers or by image thieves.

I like Alamy so I don't want to be too critical but perhaps they should check IP and commercial vs editorial designation.  Contributors are likely to make mistakes.

Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product.

I saw the original picture, it was online for a few days after Alamy deleted it. The original picture was on a frame, on a wall in an exhibition with a wall sign and showed distinct shadows from a window. I didn't see it on iS, so I don't know how it was captioned, but it seems unlikely the photographer was trying to pass it off as his own work. The BI bought it and cropped it right in to the photo only and did at least some work to mitigate the window shadow across the photo. Rolling Stone seems to have left the shadow in as it was on the original, and I'm not sure via google if they cropped the image in too, but it looks like they did.

I also don't know whether these two end users credited the image to Nadav Kandar, only to the Alamy tog or not at all.

So the buyer bought a legitimate product, but the end users went against Alamy's terms of use (quoted and linked to above) which say editorial images should not be cropped to alter context.
Looking at it logically, and not necessarily legally (they're not necessarily always the same thing), the only defence the end user/s could have is that that particular piece of information isn't easy to find*. UNLESS buyers are required to have signed their agreement to it when they sign up as buyers (I'm not a buyer, I have no idea).

*However, you'd think professional photo editors/art directors should know not to crop an image to alter its meaning. Unlike, for example, Joe or Jane amateur blogger. In Scottish Law (I don't know much about English Law) that sort of thing (expecation of professional knowledge of a section of the Law) hold quite a bit of weight.

Interesting.  I agree that end users have a huge responsibility in regards to proper use.

ShadySue

« Reply #16 on: July 20, 2019, 14:53 »
+2
I like Alamy so I don't want to be too critical but perhaps they should check IP and commercial vs editorial designation.  Contributors are likely to make mistakes.
You can make an honest mistake. I discovered by chance that I had accidentally ticked MR on one out of over 4500 images, so it can happen (But actually the image also had property and I had ticked property and hadn't ticked PR, so the file couldn't legitmately have been used commercially anyway). Now I check quite regularly, but it's really not an easy mistake to make.

If you don't tick that you have a model release or a property release, the buyer-facing file page on Alamy automatically says No Model Release and/or No Property Release and informs the buyer that it's their responsibility to check whether they need one for their use (there's a link to more information or the buyer can contact Alamy for help with that). That happens automatically in the system, whether it's some major celebrity or a blade of grass on a white background.

So actually other than honest mistakes (which are probably pretty rare as you have to tick that you have release/s, not untick) or deliberate deception, the file will show as having no releases, so not suitable for commerical use, including that hypothetical blade of grass. Even if you indicate that there are no people and no property, the files shows as No MR, No PR and has a link to a guide about when a buyer might need releases.

I think the buyers on Alamy are more savvy. I haven't had an Alamy editorial pic which was misused by buyers, but of course, I've had image thefts via the buyer's site, which can sometimes include commerical misuses.

ShadySue

« Reply #17 on: July 20, 2019, 15:03 »
0
Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product.
Which agencies don't requite the photographer's name, and some sort of proof of identity? These are legally required to prevent money scams in the EU, in any case.

I don't know the ins and outs of every agency, but the ones I know of either require a transfer of copyright or don't allow them. There must be some way that image factories can work with agencies.

Obviously, from msg and elsewhere, we know image thieves put up portfolios of stolen work, but that's not relevant in this case. It seems the Alamy tog didn't put up a pic of Nadar's photo pretending it was his. He put up a photo of a framed photo in 'some' context in an exhibition. That's not the same thing at all.

« Reply #18 on: July 20, 2019, 15:04 »
0
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor

This is not completely true, I received in the past a couple of (very fair) mails to inform me that a bunch of my images was changed from commercial to editorial, due to contents.
So they check, maybe random, but they see

ShadySue

« Reply #19 on: July 20, 2019, 15:16 »
0
Quote
...failure of Alamy to recognize an image that shouldn't have been available for commercial use
1. Alamy does not check for IP. It also does not control editorial/commercial use. These are the responsibility of the contributor

This is not completely true, I received in the past a couple of (very fair) mails to inform me that a bunch of my images was changed from commercial to editorial, due to contents.
So they check, maybe random, but they see

That is usually after a specific issue, for example murals are now being deleted in hundreds, maybe thousands because of some complaints; National Trust images are regularly trawled, I had to remove 'Folies Bergere-type dancers' from a description, as they weren't actually in the FB. The image itself was OK to stay.

Once I (and many others) had files of a particular editorial subject removed because of an objection, but when Alamy checked it was found that the objection was unfounded so they were all reinstated.

But I was really meaning that they're not checked on upload. The photographer only indicated release information after the file has been inspected and that section isn't mandatory.
« Last Edit: July 20, 2019, 15:32 by ShadySue »

« Reply #20 on: July 20, 2019, 15:17 »
0
Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product.
Which agencies don't requite the photographer's name, and some sort of proof of identity? These are legally required to prevent money scams in the EU, in any case.

I don't know the ins and outs of every agency, but the ones I know of either require a transfer of copyright or don't allow them. There must be some way that image factories can work with agencies.

Obviously, from msg and elsewhere, we know image thieves put up portfolios of stolen work, but that's not relevant in this case. It seems the Alamy tog didn't put up a pic of Nadar's photo pretending it was his. He put up a photo of a framed photo in 'some' context in an exhibition. That's not the same thing at all.

It seems many agencies ask "do you own the copyright" which different than "did you take this picture".  Additional clarity might help. 

Alamy recently added a button asking if the image is public domain.  A button confirming the contributor and photographer are the same seems reasonable. 


ShadySue

« Reply #21 on: July 20, 2019, 15:31 »
0
Perhaps all agencies should try harder.  Perhaps agencies should require the photographers name.  When the photographer is not the contributor perhaps agencies should require an upload of a work for hire or transfer of copyright document.  Buyers deserve to know they are receiving a legitimate product.
Which agencies don't requite the photographer's name, and some sort of proof of identity? These are legally required to prevent money scams in the EU, in any case.

I don't know the ins and outs of every agency, but the ones I know of either require a transfer of copyright or don't allow them. There must be some way that image factories can work with agencies.

Obviously, from msg and elsewhere, we know image thieves put up portfolios of stolen work, but that's not relevant in this case. It seems the Alamy tog didn't put up a pic of Nadar's photo pretending it was his. He put up a photo of a framed photo in 'some' context in an exhibition. That's not the same thing at all.

It seems many agencies ask "do you own the copyright" which different than "did you take this picture".  Additional clarity might help. 
How? If someone is honest and they own the copyright, it doesn't make any difference whether they took the picture. AIUI if you set an image up completely and ask someone else to take the image (e.g. if you're in the picture) you own copyright to the image, but possibly it might be well to get a sign-off on that.

Quote
Alamy recently added a button asking if the image is public domain.  A button confirming the contributor and photographer are the same seems reasonable.

There are lots of image factories, or husband and wife teams, or family / friend teams.

But let's face it, if someone wants to be dishonest, they will be dishonest, whether it's faking releases or saying they have copyright to an image when they don't.

(All of these points are irrelevant to this particular case.)


« Reply #22 on: July 21, 2019, 01:57 »
+2
It seems people here are talking about this issue without seeing the images in questions. So bellow you have the original picture on alamy, the Big Issue cover and the post by Nadav Kander.

There are some "if's" in this story but all things considered and not knowing those details the only part in error may be the magazine. Even if the photographer has some responsibility, the magazine will never be completely innocent unless the alamy photographer claimed to be Nadav Kander, which apparently he has not done.

The "if's" are:

- was it allowed to photograph inside the exhibition? If not, the photographer is in fault.

- was it allowed to photograph but it was mentioned anywhere (ticket, entrance...) that the photos taken could not be use in any profitable way? If yes, the photographer is in fault.

- was the image marked as Editorial or was being licensed as Commercial? If it was Editorial I don't see a problem for the photographer unless any of the previous conditions existed. If it was licensing as Commercial then the photographer may have a problem, even if he forgot to mark he Editorial box.

- what was the caption on alamy? Did it provide context to the photo also and attributed credit to Nadav Kander?

Nevertheless it's clear that the image was on display on a wall, not even showing the original photo completely. And that the magazine made an effort to crop out not only the frame, the empty wall and the caption stuck on it, but also to minimize the shadows of a window seen over the picture.

As a personal note I would never have taken a photo like the one seen on alamy. But if I was photographing something like this I would have photographed the whole picture and frame, the wall and caption, plus the floor and if possible someone looking at it, creating a bigger context for the photo in the wall. 





« Last Edit: July 21, 2019, 02:28 by MicroVet »

ShadySue

« Reply #23 on: July 21, 2019, 06:55 »
0
- was the image marked as Editorial or was being licensed as Commercial? If it was Editorial I don't see a problem for the photographer unless any of the previous conditions existed. If it was licensing as Commercial then the photographer may have a problem, even if he forgot to mark he Editorial box.
A lot of people have made comments here who don't seem to know how Alamy works.

Alamy doesn't license as editorial or commercial. It indicates whether or not releases are available and the end buyer then makes a decision. As I said above, a blade of grass isolated on white will show up as unreleased.

Alamy is far stricter than e.g. is/Getty and probably SS about what constitutes 'property'. So much so that I indicate anything other than wildlife/nature shots as 'needs release/no release', even if I know that iS would accept it. Also it's far stricter about what constitutes a person, even tiny totally out of focus pixel clusters that might be a person count as a person, or tiny parts of a person.
Nowadays you can also choose to tick an editorial only box: for RM it's not compulsory, I'm not sure about RF. That option was only recently introduced for RM.

Why wouldn't you choose always to tick 'editorial only'? Well, say you had a photo of a well known tourist site with a range of touristic 'property'. You indicate no releases. A tour operator might consider whether the property owners  would object if they used your image in promotional materials and decide they would be pretty stupid to do so, and go ahead (at their own risk). They couldn't legitimately do that if the editorial only box was ticked, though they could apply to Alamy to ask you to lift the restriction for their use and it would be up to you to weigh the risk, or require the end user to accept full risk.

Note that Kadar himself has said, "added to this your site says clearly that permission should be sought before using your work". I'm not 100% sure of how to interpret that, and can totally identify with 'red mist' getting in the way of clear communication, but my first interpretation of that is that no releases were indicated, which triggers the 'check if you need releases' link.
But now I see it could also mean the the tog has his own site with that comment on it.

It does seem, though, that Kadar doesn't see the difference between someone making an image of a framed print of his image and making a straight copy and claiming it as his own.

As the two indicated uses are editorial, the commercial use question is irrelevant to this case.

There has been no indication that the photographer claimed he had releases, that is not at issue here. That would outright lying and a totally different issue.
« Last Edit: July 21, 2019, 16:31 by ShadySue »

ShadySue

« Reply #24 on: July 21, 2019, 19:07 »
0
By coming out with this on Insta, I think Nadav Kander has backed himself into a difficult corner.

It looks like the bulk of the blame is on the Big Issue, by cropping in and mitigating the window shadow. (I don't have enough English Law expertise to know whether the author has any legal responsibility - he certainly wan't trying to pass off the work as his own.)

However, as the Big Issue is a charity enterprise, and one close to David Lynch's heart, he can hardly go suing them (Obviously, he could legally, but it wouldn't do his personal reputation any good). But he wouldn't want to be seen to back down, and now he has discovered Rolling Stone did nearly the same but without removing the shadow, and that's a commercial publication.


 

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