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Author Topic: liability legal protection for artists selling via stock agencies.  (Read 8348 times)

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« on: December 05, 2013, 15:53 »
0
Hello everyone,

I will be very thankful to get any ideas concerning the following-

In most stock agency's terms of use the artists are somehow legally protected as well, mainly concerning copyright issues.

Yet I was not able to find an additional and very important legal protection for the artists-
A legal protection for any damages, loss or anything else resulting from the use with the images sold(liability protection)

How do the contributors suppose to protect themselves for liability issues?

 An example of an alternative method can be found in the world of stock fonts- The customers usually receive a file with the specific terms of use of the artists, so in addition to the copyright, the artists can use a liability protection as well.

How do you solve this issue while selling images via the stock agencies?

Many thanks for any advice.

Illustrationist.


« Reply #1 on: December 05, 2013, 16:10 »
+1
Can't say I understand the question.  If someone doesn't upload anything legally compromising, no worries.  If the buyer uses something inappropriately, his problem.

« Reply #2 on: December 05, 2013, 17:20 »
0
Take a look at most stock agency's terms of use and you will see that they protect themselves  for liability issues- Any damages, loss or anything that might happen to the customers while, or as a result of using the images.

So if it is included within the terms, it is obviously no less important than copyrights.

So how are the artists suppose to protect themselves for liability issues, in addition to the copyrights?

EmberMike

« Reply #3 on: December 05, 2013, 17:26 »
+2

We sell our images through agencies so we don't have to worry about this kind of stuff.

And for those of us who sell directly to our customers, hopefully most folks are including some language in their license that protects them. Mine includes this:

Quote
By purchasing this content, you agree to indemnify and hold Ember Stock and Mike McDonald harmless against any claim, liability, loss, damage, cost, or expense, including legal fees on a solicitor and client basis) incurred by or in connection with any breach by you or anyone acting on your behalf, regarding any of the terms of this agreement. You agree that your usage of this content and any action that results from your usage cannot be passed on to Ember Stock or content creator Mike McDonald.

« Reply #4 on: December 05, 2013, 17:55 »
0
If they purchased from the agency, they are under the agency Terms.

I don't understand what you said about copyright.
If you are doing original illustrations why would you worry?

Maybe you can explain further or give some examples regarding your concerns...


« Reply #5 on: December 05, 2013, 18:33 »
0
My concerns are simple-

When you sell images via a stock agency,
the customers agree to terms of use that protect the agency itself.

The artists are also protected by those terms of use, but only concerning copyright issues(like mentioning that the client should not sell the image purchased "as is", etc)

my concern is that in case of any damage or loss resulted from the use with the images(not copyright related), the stock agency might claim that they are just acting as a middle-man, thus the artist should take all responsibility.

As mentioned, in the stock fonts industry, the clients receive both the font file, as well as a "read me" file with the artist's own terms of use, where the artist himself can protect himself for both any copyright infringement as well as liability issues.

Some might overlook this, but mentioning liability within the agencies terms suggests that it is important to them to protect themselves, and I ask -

How the artist, who is selling via stock agencies, can protect himself for any liability issues, in the same manner that the agencies do in order to protect themselves?
« Last Edit: December 05, 2013, 18:37 by illustrationist »

Uncle Pete

« Reply #6 on: December 05, 2013, 19:18 »
+1
It's called E and O insurance "Errors and Omissions" and if I had a policy (which I might need next year) it's about $600 annually. My decision will be based on if I can make that much from the materials, to cover the insurance and make some profit. If not, why bother. I think that was for a 1 million dollar policy, I did the research in June.

As far as what it covers, it generally pays for lawyer expenses, and also any money you are forced to pay from losing the case.

Here's a link if that will help, and if I understood your question? If not, well it was fun searching Personal Liability Insurance if anyone else cared. Someone who uses PD images, public subjects, or makes derivative works, could need this.

http://www.businessinsurancenow.com/professional-liability/

« Reply #7 on: December 05, 2013, 20:38 »
0
Yes, the insurance option is something I also consider.

There are two issues with such insurance-

I found such specific insurance to be not that common in my country.

The price, as you mentioned, might not worth the money earned from selling stock images.

That it the reason I also look for additional aid- some protection that will also be included within the terms of use(not a perfect solution, but might also help)

Amazingly, it is not commonly found (protection for the contributors) within the standard terms used by the industry.

Ed

« Reply #8 on: December 05, 2013, 23:07 »
+1
I pay a lot of money for insurance...and I make sure that I am not negligent in my business practices.

Insurance is very expensive as has been pointed out.

You are correct in assuming that a stock agency will claim they are the "middle man".  Per every Terms of Service I have read, the contributor indemnifies the agency.  I recently contacted a very large rights managed/"traditional" agency about an issue and the response was that the contributor is the one that has to deal with issues arising from copyright and right to publicity claims per their contract.

Errors and Omissions will not cover negligence...and it won't cover much other than your failure to deliver images under contract for a wedding or portrait session (or that type of service).

Where I live, a general liability policy with errors & omissions coverage runs about $800.  A second policy for claims of right to publicity with $2 million in coverage runs another $800.  Both of these policies are offered from Hill & Usher - an insurance broker that specializes in coverage for photographers in the U.S.

That's my experience.
« Last Edit: December 05, 2013, 23:10 by Ed »

« Reply #9 on: December 06, 2013, 10:35 »
0
You are correct in assuming that a stock agency will claim they are the "middle man".  Per every Terms of Service I have read, the contributor indemnifies the agency.  I recently contacted a very large rights managed/"traditional" agency about an issue and the response was that the contributor is the one that has to deal with issues arising from copyright and right to publicity claims per their contract.

Yes, it's unlikely any stock agency will take any responsibility.  For all the talk about exclusive protection, IS was always good about passing any issues to the contributor.  Unless it involved cash for them, and then sometimes they would chase an EL down.  I have an image that has been used in Walgreens circulars for years, and they never really did much about it.

I pay around $700 and that includes around $14000 in equipment.

mlwinphoto

« Reply #10 on: December 06, 2013, 13:19 »
+3
All this liability stuff is (just) one of the reasons I shoot nature....kinda hard to get sued by a mushroom.

Ed

« Reply #11 on: December 06, 2013, 17:18 »
0
All this liability stuff is (just) one of the reasons I shoot nature....kinda hard to get sued by a mushroom.


Are you shooting in the U.S.?  Then it's not the mushrooms you need to worry about - it's the National Park you are shooting from (who require permits and liability insurance) - check each website for the National Park Service...

..it's the National Forest you are in that requires a permit with liability insurance...

http://www.fs.fed.us/specialuses/special_film.shtml

...it's the local park in your city that requires a permit with liability insurance.

Essentially, if you're shooting nature in the Grand Canyon, and a swift breeze comes up and knocks over your tripod hitting the person on the mule on the trail below you, the National Park Service wants to be sure you have the funds to make it right.


That's a bit off topic from dealing with stock agencies...but it's why those of us that have insurance have it - and you do need it even if you're shooting mushrooms out in the field.

ShadySue

« Reply #12 on: December 06, 2013, 17:47 »
0
Travel list USA.

ShadySue

« Reply #13 on: December 06, 2013, 17:51 »
0
The thing that I'd like to know is this:
I have photos on iStock which are old scans I took in the Grand Canyon (etc) before I was ever selling stock.
What more danger to the public am I now than I was then?

Aren't these rules really for set up shots with models, lights, crew, etc etc etc.? (But on a technicality we could be hit by it if the person who we bumped into or our tripod fell over on somehow discovered we were possibly shooting for stock, so a simple apology wouldn't cut it.)

Ed

« Reply #14 on: December 06, 2013, 18:17 »
0
Sue, I don't think old photos will matter.  The parks here in Colorado are cracking down.  I know of several photographers that have been fined (one got a fine of $1,200) for shooting without a permit.  In Denver, the permits are free - you just need to demonstrate liability insurance.

There are too many photographers here in Colorado - usually a camera and you're OK.  A camera and a tripod will draw attention, a camera, a tripod, and any lighting/reflectors will get a ranger to ask for you to provide a copy of a permit.

ShadySue

« Reply #15 on: December 06, 2013, 18:24 »
0
Clearly, old photos don't matter. I didn't get caught  ;)
The question is how is a stock photographer (who may or may not be using a tripod) photographing a mushroom, landscape or cityscape any more of a danger to the public than a keen amateur, who might have a tripod.
Models, lights, dollys, assistants etc are a whole different ballgame.
And the Law is an Ass.
Still, with liability insurance the price it is, it wouldn't be cost-effective for many of us, other than, perhaps, those with the models and crew etc.

Uncle Pete

« Reply #16 on: December 06, 2013, 19:06 »
+3
This is getting out of control. Here's the part about still photography. And the regulations are very specific about filimng and what is considered commercial. Before people get all bent... (emphasis mine)

"In general still photography is not regulated nor is a permit required for it on the National Forest
However, if the still photography in wilderness takes place in locations where members of the
public are generally not allowed, or where additional administrative costs are likely, or if the still
photography involves models, sets, or props that are not a part of the sites natural or cultural
resources or administrative facilities, then a permit is required. (Refer to FSH 2709.11, sec. 45.5,
for definitions of models, sets, and props)."

And in other directives it mentions use of tripods and lighting also models and interfering with the public's enjoyment of the site. But someone walking around shooting mushrooms, waterfalls and trees, will not be stopped and fined. Unless of course the ranger can't read.

I should mention that in the 80s in Great Britain I was prevented from using a personal video recorder as it was banned in the National Trust sites. Now they and Heritage (I forget their official title) have decided that they own the rights to all images taken on their properties, so in reality the US is less restrictive.

Now back to liability. The reason I was asked to get E&O insurance was a request from one of the agencies, before they would accept some of my derivative works. Plain and simple, they wanted to be protected against MY errors and possible copyright infringement. It does have to do with copyright.


mlwinphoto

« Reply #17 on: December 06, 2013, 19:15 »
0
This is getting out of control. Here's the part about still photography. And the regulations are very specific about filimng and what is considered commercial. Before people get all bent... (emphasis mine)

"In general still photography is not regulated nor is a permit required for it on the National Forest
However, if the still photography in wilderness takes place in locations where members of the
public are generally not allowed, or where additional administrative costs are likely, or if the still
photography involves models, sets, or props that are not a part of the sites natural or cultural
resources or administrative facilities, then a permit is required. (Refer to FSH 2709.11, sec. 45.5,
for definitions of models, sets, and props)."

And in other directives it mentions use of tripods and lighting also models and interfering with the public's enjoyment of the site. But someone walking around shooting mushrooms, waterfalls and trees, will not be stopped and fined. Unless of course the ranger can't read.

That's exactly right, and it applies to the National Parks as well.  I carry a printout of the regulations as determined by the US Dept of the Interior as per their policies regarding shooting in the National Parks.  That way, if some uninformed ranger should ask for my permit I can show him/her I don't need one according to his/her 'boss'.

« Reply #18 on: December 06, 2013, 22:29 »
0
The type of liability insurance that a photographer needs is probably very different from what a vector artist would need.
Wouldn't you say?

ShadySue

« Reply #19 on: December 07, 2013, 07:59 »
+1
The type of liability insurance that a photographer needs is probably very different from what a vector artist would need.
Wouldn't you say?
Oh, I don't know.
You could be standing at the Grand Canyon making reference sketches and your pencil could fly out of your hand straight into someone's eye.
(Or more likely, you're equally likely to step back onto someone's toes.)

Ed

« Reply #20 on: December 07, 2013, 17:32 »
0
Personal still photography is not regulated as you say.  Commercial still photography is regulated/permitted.  That's the difference.

Similarly, you can go to Disneyland and photograph your kids having fun and put those images in your photo album....but you need a property release/permission from Disney to shoot commercially.

The City of Denver has similar regulations - any time you take a client out on city streets, you must have a permit (whether you have equipment other than your basic camera or not).  The permits are free from the city - you just need to demonstrate you have liability insurance.  The Denver Police Department and the "rangers" that patrol the city's parks are aware of this and fine photographers.

Here is Denver's guide...https://www.denvergov.org/Portals/701/documents/special_events/OACFRules.pdf

The City of Boulder, Colorado has a similar requirement (they require a 14 day notice and a fee)...https://bouldercolorado.gov/parks-rec/film-and-photography-permits

This is nothing new and it's nothing new in Federal State Parks.  If you are shooting in a commercial manner, you need a permit pretty much everywhere.

I know people that have been fined in Denver Parks and in Boulder Parks.  I know people that have been fined/kicked out of Colorado State Parks.  I know someone that was at Red Rocks Amphitheater that received a ticket for stepping two feet off of a trail to take a picture. (this is a Denver City Park).

Know what you're shooting and know the requirements...be prepared if you're questioned about it and have insurance.  It's not that hard.


This is getting out of control. Here's the part about still photography. And the regulations are very specific about filimng and what is considered commercial. Before people get all bent... (emphasis mine)

"In general still photography is not regulated nor is a permit required for it on the National Forest
However, if the still photography in wilderness takes place in locations where members of the
public are generally not allowed, or where additional administrative costs are likely, or if the still
photography involves models, sets, or props that are not a part of the sites natural or cultural
resources or administrative facilities, then a permit is required. (Refer to FSH 2709.11, sec. 45.5,
for definitions of models, sets, and props)."

And in other directives it mentions use of tripods and lighting also models and interfering with the public's enjoyment of the site. But someone walking around shooting mushrooms, waterfalls and trees, will not be stopped and fined. Unless of course the ranger can't read.

I should mention that in the 80s in Great Britain I was prevented from using a personal video recorder as it was banned in the National Trust sites. Now they and Heritage (I forget their official title) have decided that they own the rights to all images taken on their properties, so in reality the US is less restrictive.

Now back to liability. The reason I was asked to get E&O insurance was a request from one of the agencies, before they would accept some of my derivative works. Plain and simple, they wanted to be protected against MY errors and possible copyright infringement. It does have to do with copyright.

« Reply #21 on: December 07, 2013, 17:56 »
+3
I don't know where the idea came from that "in most stock agency's terms of use the artists are somehow legally protected".  All the terms I read seem to state that the artist indemnifies the agencies and guarantees to fund the agency's legal costs in the event of trouble.
It's never made me feel protected, quite the reverse actually, I seem to be promising to protect them to an unlimited degree. Or have I misunderstood everything?

ShadySue

« Reply #22 on: December 07, 2013, 18:18 »
0
Know what you're shooting and know the requirements...be prepared if you're questioned about it and have insurance.  It's not that hard.
I think it's back to USA for me. $600 for insurance - I probably wouldn't make that back.
How are people from other countries even supposed to imagine that these laws would apply? There's nothing like that about individuals making stock images (stills) in cities or national parks here, and I'd never have imagined it if I hadn't read about it here. I believe I've read that Australian National Parks need permission too.

Oh, I've just seen that my travel insurance gives me 2 million personal liability and 25,000 legal expenses. Wonder if that would cover it? I guess I'd need to check with them if that would cover 'photography that might or might not find its way onto a stock agency'. Oh, of course not, it doesn't apply to matters 'arising out of your trade or business'. I still don't see the difference between the risks incurred by a very keen amateur compared to a stock photographer shooting 'available' landscapes or cityscapes.
Just an insurance company's scam like having to pay so much extra for my gear, as I shoot for stock. I guess I should extract the extra and make it an expense off tax.
« Last Edit: December 07, 2013, 18:36 by ShadySue »

« Reply #23 on: December 07, 2013, 18:33 »
+2
... I seem to be promising to protect them to an unlimited degree. Or have I misunderstood everything?

I don't think you're far off the mark, but just because someone writes language into an agreement or contract doesn't make it enforceable.

I think that the reasonable cases of artist protecting the agency is if the artist has provided a bunch of forged model releases (or some such) but otherwise I think agencies would  have a very hard time getting anywhere with us protecting them. The best it does is give the agencies some cover for confiscating any income of ours they're holding in the event of some dispute.

BoBoBolinski

« Reply #24 on: December 10, 2013, 14:52 »
-1
"By purchasing this content, you agree to indemnify and hold Ember Stock and Mike McDonald harmless against any claim, liability, loss, damage, cost, or expense, including legal fees on a solicitor and client basis) incurred by or in connection with any breach by you or anyone acting on your behalf, regarding any of the terms of this agreement. You agree that your usage of this content and any action that results from your usage cannot be passed on to Ember Stock or content creator Mike McDonald."

Did you take legal advice regarding this wording? I can already see a missing bracket.
« Last Edit: December 11, 2013, 02:31 by BoBoBolinski »


 

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