Author Topic: liability legal protection for artists selling via stock agencies. (Read 11961 times)

illustrationist · « **on:** December 05, 2013, 15:53 »

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.

heywoody · « **Reply #1 on:** December 05, 2013, 16:10 »

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.

illustrationist · « **Reply #2 on:** December 05, 2013, 17:20 »

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 »

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.

sweetgirll · « **Reply #4 on:** December 05, 2013, 17:55 »

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...

illustrationist · « **Reply #5 on:** December 05, 2013, 18:33 »

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?

Uncle Pete · « **Reply #6 on:** December 05, 2013, 19:18 »

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/

illustrationist · « **Reply #7 on:** December 05, 2013, 20:38 »

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 »

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.

Sean Locke Photography · « **Reply #9 on:** December 06, 2013, 10:35 »

Quote from: Ed on December 05, 2013, 23:07

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 »

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 »

Quote from: mlwinphoto on December 06, 2013, 13:19

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 »

Travel list ~~USA~~.

ShadySue · « **Reply #13 on:** December 06, 2013, 17:51 »

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 »

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 »

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 »

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 site’s 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 »

Quote from: Uncle Pete on December 06, 2013, 19:06

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 site’s 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'.

sweetgirll · « **Reply #18 on:** December 06, 2013, 22:29 »

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 »

Quote from: sweetgirll on December 06, 2013, 22:29

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 »

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.

Quote from: Uncle Pete on December 06, 2013, 19:06

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 site’s 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.

BaldricksTrousers · « **Reply #21 on:** December 07, 2013, 17:56 »

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 »

Quote from: Ed on December 07, 2013, 17:32

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.

Jo Ann Snover · « **Reply #23 on:** December 07, 2013, 18:33 »

Quote from: BaldricksTrousers on December 07, 2013, 17:56

... 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 »

"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.

WaterView · « **Reply #25 on:** October 18, 2014, 07:13 »

I read the forest service in the United States is updating their regulations for shooting on national forest land and are inviting public comment. What do you all think of this?

I added this question here because there are a lot of references to permits for this sort of thing in this thread. Tyler, if you think this should be its own topic, please feel free to move it and title it accordingly. Thanks.

Here is a link to the topic followed by the site for public comment. The time for public comment ends November 3, 2014.

www.aclu.org/blog/free-speech/smokey-says-get-permit-shutterbug

www.federalregister.gov/articles/2014/09/04/2014-21093/proposed-directive-for-commercial-filming-in-wilderness-special-uses-administration?utm_campaign=email+a+friend&utm_medium=email&utm_source=federalregister.gov

cascoly · « **Reply #26 on:** October 18, 2014, 12:51 »

we visited several national parks in Utah last year just before they shut the parks down. zion has a major highway running thru it that couldn't be closed -- when the parks shutdown they had rangers making sure no one used the highway pullouts to snap a picture from within the now closed park!

stockastic · « **Reply #27 on:** October 18, 2014, 13:51 »

I think a big reason for changes in regulation and enforcement is to prevent sites from being overrun by wedding and fashion shoots. And I agree with that goal. Yes, photography is a civil liberties issue, but there also has to be some 'right' to enjoy the scenery unobstructed by a phalanx of bridesmaids in gowns.

Similarly, we should be able to visit those iconic spots and stand there enjoying the view without being surrounded by a forest of guys with recently purchased carbon tripods, all shooting exactly the same thing.

I was in Chicago not long ago, and our enjoyment of the Bean was limited due to its being surrounded by wedding parties being photographed. And I mean big groups, tripods and formal poses, and that hugely inflated sense of importance and entitlement. It was really a drag and this isn't the purpose of public art.

Uncle Pete · « **Reply #28 on:** October 18, 2014, 19:22 »

Do I have to read this on every photo forum in the world? Do the people posting it, take time to read the first paragraph or read the limitations and regulations, or just go off claiming their freedom is being abridged unfairly. Or crying that we can't take nature photos in the parks anymore:

"The proposed amendment would address the establishment of consistent national criteria to evaluate requests for special use permits on National Forest System (NFS) lands."

True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license.

New York has laws to cover this, I know San Francisco and LA do, because of the entertainment industry. Aren't people going to shout that the streets are free and open and we shouldn't need a license to take photos. Museums and zoos that have any private funding, even if they are County operated, will have restrictions. Public gardens and parks in your city.

We are free to take photos on the streets and in the National Parks and NFS lands. Just not a production company or commercial enterprise. It's not about shooting pictures that you might print or sell on Microstock.

From the link provided: "The previous directive addressed still photography in wilderness and did not provide adequate guidance to review commercial filming in wilderness permit proposals."

In other words, this is not new.

michaeldb · « **Reply #29 on:** October 18, 2014, 21:50 »

Quote from: Uncle Pete on October 18, 2014, 19:22

...True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license.

Let me get this straight: I live in a place with a national forest all around me. I hike in it often and have for many years. I have yet to see any fashion photographers or bridesmaids blocking the trails. But in order to be protected from them, I now must buy a permit to carry a tripod with me if I want to take some snaps using a long lens?

And that's a good idea?

stockastic · « **Reply #30 on:** October 20, 2014, 11:35 »

Quote from: michaeldb on October 18, 2014, 21:50

Quote from: Uncle Pete on October 18, 2014, 19:22
...True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license.
Let me get this straight: I live in a place with a national forest all around me. I hike in it often and have for many years. I have yet to see any fashion photographers or bridesmaids blocking the trails. But in order to be protected from them, I now must buy a permit to carry a tripod with me if I want to take some snaps using a long lens?

And that's a good idea?

I'd say that's an extreme interpretation. If you're out on a trail and set up a tripod for a few minutes I really doubt there'd be any enforcement even if you were violating the letter of the law. I agree that laws should be unambiguous and not dependent on the whims of people enforcing them, but I don't know offhand how this restriction could be worded so that you can carry a tripod for an occasional shot in an isolated area, while I - back at the scenic overlook - can be free of the plague of bridal parties. But I think in practice it can be worked out.

I have to say, though, that my preference would be to err on the side of preserving the park experience vs. the individual right to use a tripod. Sorry but things have just gone too far, there are too many people all wanting to do the same things in the same places. Something has to give.

Uncle Pete · « **Reply #31 on:** October 20, 2014, 11:46 »

No you don't need to buy a permit. Did you read the actual proposal and information?

Quote from: michaeldb on October 18, 2014, 21:50

Quote from: Uncle Pete on October 18, 2014, 19:22
...True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license.
Let me get this straight: I live in a place with a national forest all around me. I hike in it often and have for many years. I have yet to see any fashion photographers or bridesmaids blocking the trails. But in order to be protected from them, I now must buy a permit to carry a tripod with me if I want to take some snaps using a long lens?

And that's a good idea?

michaeldb · « **Reply #32 on:** October 20, 2014, 14:56 »

No, I admit that I did not read the whole proposal and information.

I was assuming that what you said was true when you said, "True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license."

Quote from: Uncle Pete on October 20, 2014, 11:46

No you don't need to buy a permit. Did you read the actual proposal and information?

Quote from: michaeldb on October 18, 2014, 21:50
Quote from: Uncle Pete on October 18, 2014, 19:22
...True if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license.
Let me get this straight: I live in a place with a national forest all around me. I hike in it often and have for many years. I have yet to see any fashion photographers or bridesmaids blocking the trails. But in order to be protected from them, I now must buy a permit to carry a tripod with me if I want to take some snaps using a long lens?

And that's a good idea?

Jonathan Ross · « **Reply #33 on:** October 22, 2014, 11:52 »

Hi All,

Check out E & O coverage, I wouldn't shoot without it.

Cheers,
Jonathan

Uncle Pete · « **Reply #34 on:** October 23, 2014, 00:56 »

You won't need a permit. That's the point.

Quote from: michaeldb on October 20, 2014, 14:56

No, I admit that I did not read the whole proposal and information.

michaeldb · « **Reply #35 on:** October 23, 2014, 01:10 »

You said, "...if you are going to bring models, paid clients (weddings, graduations, Etc.), lighting, tripods, crew, or ask for special permission to restricted areas, or possibly block the general public from enjoying the area, you will be asked to pay for a license."

That is, people (me) bringing tripods will be asked to pay for a license, you say. So are you making a distinction between a 'license' and a 'permit'?

Quote from: Uncle Pete on October 23, 2014, 00:56