Author Topic: Intellectual property infringement claim against Alamy - Email (Read 15177 times)

ShadySue · « **Reply #25 on:** April 19, 2024, 12:42 »

Quote from: RalfLiebhold on April 19, 2024, 07:53

Quote from: Brasilnut on April 19, 2024, 05:01
Worrying update here from Alamy.

I asked Alamy whether my token damages over some $25 would bring the matter to a close and their reply:

Quote
"This matter remains ongoing with the case currently in front of the German courts. As mentioned, legal costs are being incurred by Alamy in defending the claims which as a contributor to you provide Alamy with indemnification against such claims under the terms of our contract. In the event of any further developments in relation to your cost liability under this matter we would provide you with an update to advise of any changes."

To be continued...

That is indeed worrying.
As a contributor, you are forced to pay for a court case without having a say in it, where you don't know what it's about, how long it will take and how much it will cost in the end.
Above all, you don't know whether it would have been cheaper to settle the initial claim.

Worrying indeed, but I wouldn't be surprised if all distributors have similar clauses in their contracts.
E.g. iStock 10B:
"iStock reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStock’s defence of such claim."

Shutterstock 13m
"Shutterstock represents and warrants that:
m. upon making or learning of any claim that is inconsistent with any of the warranties or representations made by you, Shutterstock may send you written notice of such claim, using the email address provided by you to Shutterstock, specifying the details of the claim as then known to Shutterstock.
i. Pending the determination of such claim, Shutterstock may withhold from royalties and/or other compensation due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by Shutterstock.
ii. Pending the determination of such claim, Shutterstock may withhold from royalties and/or other compensation due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by Shutterstock."

Alamy:
"5. Indemnities
5.1. You will indemnify, defend (at the request of Alamy) and hold Alamy and its affiliates, Customers, Distributors, sub-licensees and assigns (the “Indemnified Parties”) harmless against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable legal expenses) which any of the Indemnified Parties incur arising from or in in relation to: (i) any claim that the Content or Metadata infringes any third party’s copyright or any other intellectual property right (ii) any breach of your representations, obligations and warranties under this Contract or the System. This clause will remain in force after the termination of this Contract." (my bold)

oooo · « **Reply #26 on:** April 19, 2024, 14:03 »

...any claim that the Content or Metadata infringes ...

and that for there is editorial.
of course you cant offer everything under editorial,
but in case of the newspaper-rack the contributor likely did nothing wrong,
and must not be charged (it doesnt matter whoever wins that lawsuit)

If alamy gets away with this,
contributors have to delete all their editorial content,
to avoid possible horror bills in further cases

dragonblade · « **Reply #27 on:** April 20, 2024, 01:09 »

Quote from: oooo on April 19, 2024, 14:03

If alamy gets away with this,
contributors have to delete all their editorial content,
to avoid possible horror bills in further cases

I hope it won't come to that. I certainly won't be submitting any editorial photos of magazines or newspapers.

Uncle Pete · « **Reply #28 on:** April 20, 2024, 12:32 »

Quote from: Brasilnut on April 19, 2024, 05:01

Worrying update here from Alamy.

I asked Alamy whether my token damages over some $25 would bring the matter to a close and their reply:

Quote
"This matter remains ongoing with the case currently in front of the German courts. As mentioned, legal costs are being incurred by Alamy in defending the claims which as a contributor to you provide Alamy with indemnification against such claims under the terms of our contract. In the event of any further developments in relation to your cost liability under this matter we would provide you with an update to advise of any changes."

To be continued...

It's in the courts. Still seems odd that Alamy would use this clause, and as Sue has pointed out, they all have the same way, to get US to pay for their legal defense.

Quote from: RalfLiebhold on April 19, 2024, 07:53

That is indeed worrying.
As a contributor, you are forced to pay for a court case without having a say in it, where you don't know what it's about, how long it will take and how much it will cost in the end.
Above all, you don't know whether it would have been cheaper to settle the initial claim.

True, but who would settle, when they aren't wrong? How much was the initial claim? If they settled, who would pay? The contributors? Then would people here be saying, they should have fought the case and not settled.

I'm repeating... Bild brought a suit against Alamy. Seems this is more difficult to find details than the US cases. For what? How much? What are the specifics.

It's a claim, not a conviction. Anyone can claim, but willing and collecting are another issue.

And personally, unless the German courts are crazy, Alamy will win the defense and Bild will have to pay for that defense. I'm not so sure, and I'm not part of this, but wouldn't that mean, that everyone who paid for the defense would get their money back?

Someone who knows German law will have to tell us, how an incidental photo of a news stand, is infringing. If that's true, you can't take a photo of anything! Not a car, an airplane, a crowd on the street, a store front, nothing, because it would be showing trademarks and logos and service marks or copyrighted materials. The cover of a magazine, is not the subject and isn't protected.

Now... if Alamy had accepted something like a cropped, magazine cover, isolated, that kind of thing, yes, they could lose. But then why would everyone else be paying for that error?

Her Ugliness · « **Reply #29 on:** April 21, 2024, 01:24 »

Quote from: Uncle Pete on April 20, 2024, 12:32

Someone who knows German law will have to tell us, how an incidental photo of a news stand, is infringing. If that's true, you can't take a photo of anything! Not a car, an airplane, a crowd on the street, a store front, nothing, because it would be showing trademarks and logos and service marks or copyrighted materials. The cover of a magazine, is not the subject and isn't protected.

I have spend a lot of time reading up on German laws regarding editorial content (mostly because a lot of people in Germany seem to think that the DSGVO forbids photographers to take any photos with people in it on public ground, which just isn't true and I wanted to be prepared in case someone gives me trouble in public) and I absolutely do not understand on what ground BILD is suing Alamy. Just like in any other country, the question whether there is an infringement depends on how the image was used and as long as the image was not used in any commercial way, the usage is allowed.

The problem might be that agencies do not really give a crap about how their customers use the images. I found images of mine bought from iSTock used in a way that goes against their license agreement. Wrote them multiple times and was always completely ignored. They do absolutely nothing to enforce that images are only used in a way the license agreement allows it.

Someone might have bough editorial images from Alamy and used them commercially. In this case BILD might sue Alamy for not enforcing that the images were only used according to their license agreement. But I have no clue how this is supposed to be the contributors' fault and why they have to pay for Alamy's failing.

Brasilnut · « **Reply #30 on:** April 21, 2024, 07:32 »

It's a frivilous claim (without knowing all the facts), but what I do know is that my two images of this pathetic newspaper were never licensed via Alamy. The image was taken in the UK, not sure if this is a factor in the eyes of the German court (?). Also, why hasn't Bild's parent company gone after other agencies (perhaps they have/will).

I have had just over 50 sales of the newstand featuring Bild via SS, DP and DT. As soon as I heard about this claim I removed any images featuring them.

I mean, there are at least a dozen other newspapers there on the stand as attached.

I trust that Alamy's legal team are doing their best to defend, which they have a duty. The fact that it wasn't settled out of court is worrying as this means rising costs for the losing Party. Just imagine all those billable hours to defend claims made towards those 6050 images (and also having a duty to contact and update individual contributors).

---

It's tough times for commercial photographers with AI threats and then with editorial photographers we have to walk on eggshells. I remember a few years ago I had a shot of a kid playing in the snow in Milan during a freak spring snowstorm ("Beast from the East"), which I submitted as Alamy Live News and even though none of the images sold, Alamy contacted me:

Quote

We’ve heard from the parents of the child featured in the following image from your collection which they’ve seen available for licensing on Alamy.

XYZ images

They say they haven’t given permission for the image to be licensed and are asking for its removal as no consent was given. We understand Italy has strict privacy concerning images of individuals where they are published for commercial gain. We therefore just want to check whether you obtained consent when taking these images and whether this consent extended to making the images available for licensing, whether you would like us to remove the images or if you would prefer we put the parents in touch with you to discuss directly.

I mean it's getting silly, if I were earning consistently thousands from my 15,000+ collection then I could make the argument that there is benefit but I see my average at Alamy at only around $100 net a month, so I'm just shooting myself in the foot.

Am I going to need to take out liability insurance to shoot street photography?

Am I going to have to counter-sue Alamy for the damages, if they are substantial? Perhaps it's an unfair term in the contributor contract that should be unenforceable.

Anyway, I'll rant about his on my month-end report. Maybe one of the larger stock photography publications will pick up on the story.

It appears that Alamy's in-house legal dept. are doing their best here and have to give them credit for defending the claim.

Big Toe · « **Reply #31 on:** April 21, 2024, 14:30 »

Quote from: Uncle Pete on April 18, 2024, 16:47

I could be wrong, but this just smells bad of frivolous lawsuit and something other than, illegal image use, or copyright infringing for showing the cover of a magazine, as an incidental part of a broader scene.
.

I am not so sure about that. Bild is frequently involved in lawsuits. They should have a bunch of lawyers working for them, who are experienced enough not to start a frivolous lawsuit, without any chance of success.

Also, Bild as a newspaper uses editorial photos themselves all the time. They would hurt themselves if they helped set a precedence restriciting the use of editorial photos.

My guess is that there may have been some photos where it is at least not absurd to assume that they might violate Bild's rights. Alamy may then have deleted all images featuring Bild as precautionary measure, even though probably only some of them have been a problem and are now trying to collect the money for the lawsuit from all the people whose photos have been deleted. This could probably successfully be contested in court, but who is going to sue them over 20 or even 100 or 200 Pounds or Euros?

It is really hard to say without knowing more about what the lawsuit is actually about.

ShadySue · « **Reply #32 on:** April 21, 2024, 17:54 »

Quote from: Big Toe on April 21, 2024, 14:30

I am not so sure about that. Bild is frequently involved in lawsuits. They should have a bunch of lawyers working for them, who are experienced enough not to start a frivolous lawsuit, without any chance of success.

Axel Springer's CEO is a Trump fan, so maybe no surprise there.
https://www.axios.com/2022/09/07/dopfner-axel-springer-ceo-defends-messages-trump

Her Ugliness · « **Reply #33 on:** April 22, 2024, 02:32 »

Quote from: Brasilnut on April 21, 2024, 07:32

It's tough times for commercial photographers with AI threats and then with editorial photographers we have to walk on eggshells. I remember a few years ago I had a shot of a kid playing in the snow in Milan during a freak spring snowstorm ("Beast from the East"), which I submitted as Alamy Live News and even though none of the images sold, Alamy contacted me:

Quote
We’ve heard from the parents of the child featured in the following image from your collection which they’ve seen available for licensing on Alamy.

XYZ images

They say they haven’t given permission for the image to be licensed and are asking for its removal as no consent was given. We understand Italy has strict privacy concerning images of individuals where they are published for commercial gain. We therefore just want to check whether you obtained consent when taking these images and whether this consent extended to making the images available for licensing, whether you would like us to remove the images or if you would prefer we put the parents in touch with you to discuss directly.

I mean it's getting silly, if I were earning consistently thousands from my 15,000+ collection then I could make the argument that there is benefit but I see my average at Alamy at only around $100 net a month, so I'm just shooting myself in the foot.

See, at least in Germany this would actually be a case of editorial content that is not allowed. I see a lot of editorial content like this on all kinds of stock sites, but at least here, you are only allowed to photograph people without their consent for editorial use images if they are either not the main subject of an image (for example a city scene full of people or a historic building, but there are people in front of it), or if they take part in an event of public interest like a demonstration. I can very well imagine that other countries in Europe have similar laws.

Brasilnut · « **Reply #34 on:** April 22, 2024, 06:36 »

Quote from: Her Ugliness on April 22, 2024, 02:32

Quote from: Brasilnut on April 21, 2024, 07:32

It's tough times for commercial photographers with AI threats and then with editorial photographers we have to walk on eggshells. I remember a few years ago I had a shot of a kid playing in the snow in Milan during a freak spring snowstorm ("Beast from the East"), which I submitted as Alamy Live News and even though none of the images sold, Alamy contacted me:

Quote
We’ve heard from the parents of the child featured in the following image from your collection which they’ve seen available for licensing on Alamy.

XYZ images

They say they haven’t given permission for the image to be licensed and are asking for its removal as no consent was given. We understand Italy has strict privacy concerning images of individuals where they are published for commercial gain. We therefore just want to check whether you obtained consent when taking these images and whether this consent extended to making the images available for licensing, whether you would like us to remove the images or if you would prefer we put the parents in touch with you to discuss directly.

I mean it's getting silly, if I were earning consistently thousands from my 15,000+ collection then I could make the argument that there is benefit but I see my average at Alamy at only around $100 net a month, so I'm just shooting myself in the foot.

See, at least in Germany this would actually be a case of editorial content that is not allowed. I see a lot of editorial content like this on all kinds of stock sites, but at least here, you are only allowed to photograph people without their consent for editorial use images if they are either not the main subject of an image (for example a city scene full of people or a historic building, but there are people in front of it), or if they take part in an event of public interest like a demonstration. I can very well imagine that other countries in Europe have similar laws.

That's right, in Portugal it's also the case that you cannot take portraits of people (save for some exceptional circumstances as you've mentioned) without their consent and cannot/should not publish those images for commercial gain. Appears to be quite common in many countries in Europe where there is some expectation of privacy in public.

I probably shouldn't have submitted the kid in Italy but thought it made for a nice story about unusual weather. These days I don't shoot minors anymore, it's just too problematic legally spekaing but worse of all is that relatives can get upset and just not worth the hassle for extremely limited gains.

oooo · « **Reply #35 on:** April 22, 2024, 13:20 »

Quote

See, at least in Germany this would actually be a case of editorial content that is not allowed. I see a lot of editorial content like this on all kinds of stock sites, but at least here, you are only allowed to photograph people without their consent for editorial use images if they are either not the main subject of an image (for example a city scene full of people or a historic building, but there are people in front of it), or if they take part in an event of public interest like a demonstration.

exact,
told this before,
but what was meant as a friendly advice,
was understood as a personal attac here ...

but still the problem with the newspaper example is missing

ShadySue · « **Reply #36 on:** April 22, 2024, 15:49 »

Quote from: oooo on April 22, 2024, 13:20

but still the problem with the newspaper example is missing

Being nitpicky, and IANAL, maybe they're banking on 'permanance':
Under section 59(1) of the 1965 Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte) (UrhG), it is permitted to "reproduce, distribute and communicate to the public, by means of painting, drawing, photography, or cinematography, works located permanently in public streets, ways, or public open spaces".
I have no idea. It's a can of worms.
According to Wikimedia:
https://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_territory/Germany#Freedom_of_panorama
It's the sort of stuff that keeps lawyers in champagne, and scares the rest of us witless if we think about it for long enough.

Big Toe · « **Reply #37 on:** April 22, 2024, 16:41 »

Quote from: ShadySue on April 22, 2024, 15:49

Quote from: oooo on April 22, 2024, 13:20

but still the problem with the newspaper example is missing

Being nitpicky, and IANAL, maybe they're banking on 'permanance':
Under section 59(1) of the 1965 Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte) (UrhG), it is permitted to "reproduce, distribute and communicate to the public, by means of painting, drawing, photography, or cinematography, works located permanently in public streets, ways, or public open spaces".
I have no idea. It's a can of worms.
According to Wikimedia:
https://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_territory/Germany#Freedom_of_panorama
It's the sort of stuff that keeps lawyers in champagne, and scares the rest of us witless if we think about it for long enough.

No, the freedom of panorama (Panoramafreiheit) has nothing to do with the limits of editorial usage of photos, but is about commercial use.

It means that the commercial use photos of buildings and pieces of art permanently located in a public space is not restricted by the protection of a buildings architecture or the copyright of a piece of art, like a statue. The commercial use can be prohibited due to other laws, though, for example, you cannot use a picture of a Mac Donalds restaurant commercially, because the golden M is protected as a trademark.

The limits for editorial use are far wider. For example, pictures of the Wrapped Reichstag cannot be used commercially, because it was only wrapped temporarily, but photos of it could still be used editorially.

https://en.wikipedia.org/wiki/Wrapped_Reichstag

ShadySue · « **Reply #38 on:** April 22, 2024, 17:27 »

BTW, there is also a thread on Alamy's forum:
https://discussion.alamy.com/topic/17626-bild-infringements

sharpshot · « **Reply #39 on:** April 24, 2024, 03:40 »

Crazy that Alamy wouldn't pay for the legal fees? They risk losing most of their content, as who wants to take the risk that they could end up paying more in legal fees than they earn there? If they think they will win this case, why not cover the fees themselves? If they think they can't win, then they need to make a settlement? To make people with unsold images pay, seems insane to me.

Brasilnut · « **Reply #40 on:** April 30, 2024, 09:22 »

Published my monthly earnings report where, amongst other topics, I go in detail about getting sued via Alamy.

https://brutallyhonestmicrostock.com/2024/04/30/april-2024-brutally-honest-earnings-report-special-getting-sued-edition/

ShadySue · « **Reply #41 on:** May 01, 2024, 14:15 »

Quote from: sharpshot on April 24, 2024, 03:40

Crazy that Alamy wouldn't pay for the legal fees? They risk losing most of their content, as who wants to take the risk that they could end up paying more in legal fees than they earn there? If they think they will win this case, why not cover the fees themselves? If they think they can't win, then they need to make a settlement? To make people with unsold images pay, seems insane to me.

Also, it seems that Alamy just did a search for the keyword 'Bild', and hit contributors, whether they had photos of the logo only, which is, or certainly was against their much-ignored guidelines, or it was used in a wider context, e.g. a magazine rack. :-(

They can be pretty lame at times. Once I got an email telling me to remove information which was against their guidelines from a particular image. I had to email back to point out that I couldn't, as the image wasn't mine.

DiscreetDuck · « **Reply #42 on:** May 01, 2024, 15:12 »

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Author Topic: Intellectual property infringement claim against Alamy - Email (Read 15177 times)

ShadySue

oooo

dragonblade

Uncle Pete

Her Ugliness

Brasilnut

Big Toe

ShadySue

Her Ugliness

Brasilnut

oooo

ShadySue

Big Toe

ShadySue

sharpshot

Brasilnut

ShadySue

DiscreetDuck

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