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Author Topic: moving away from istock.  (Read 16813 times)

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ShadySue

  • There is a crack in everything
« Reply #25 on: January 13, 2011, 12:13 »
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See Content that is "Rights Managed" is excluded? I am talking about fresh images with no sales history.

Non-submitted content is fine to sell RM.
And even unsold accepted content (once deactivated from iStock).


KB

« Reply #26 on: January 13, 2011, 12:50 »
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See Content that is "Rights Managed" is excluded? I am talking about fresh images with no sales history.

Non-submitted content is fine to sell RM.
And even unsold accepted content (once deactivated from iStock).
Wait -- really?

So accepted (unsold) exclusive photos that is de-activated can be sold as RM, but rejected exclusive photos cannot?

There's something wrong with that picture.

And what happens if someone were to re-submit a de-activated photo and it's rejected? Now all of a sudden it can't be sold as RM?  :D

« Reply #27 on: January 13, 2011, 13:03 »
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I'm no lawyer, but I believe that these rules fall under the category of restraint of trade.

« Reply #28 on: January 13, 2011, 14:33 »
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Any legal agreement has to be fair to all parties.

First there is a huge imbalance of power between an individual contributor and a successful company. The court will often consider the principle of equity and weigh the circumstances in favor of the weaker party. Of course in a practical term, it's not worth it to go to the court. Equity is one of the most important legal principles in common law.

Second, you have to consider the detriment caused to the parties. If a photographer is forbidden to sell something while the agency is not selling, then the detriment is only to the photographer and no damages is done to the agency, because the agency is not committed to make use of it.

Third, if the agency wants to retain proprietary rights to an image, it should never make an exclusive submission as a "no resubmit" one. It should allow the photographer to improve it until it is sell-able, even though it may lead to declining approval rate to the photographer. I can live with that.

I have become exclusive with the bona fide intention to the agency. I wish iStock can at least show us the goodwill, as it did in the past, to allow us to advance our photographic interests and success while it does not hurt its own. So we both can be sustainable.

Does it make sense to my fellow photographers? I think we should be on the same side.

« Reply #29 on: January 13, 2011, 16:17 »
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Any legal agreement has to be fair to all parties.

True. So nobody needs to sign an agreement he doesn't feel is fair.

ShadySue

  • There is a crack in everything
« Reply #30 on: January 13, 2011, 16:41 »
0
Any legal agreement has to be fair to all parties.

True. So nobody needs to sign an agreement he doesn't feel is fair.
True. But in this case one party can unilaterally change the clauses and all the other party can do is leave. No discussion, negotiation or clarification.
Remember, their contract is deliberately ambiguous. I've seen two examples at least of the new clauses where people have had legitimate differences about interpretation of what is said. That should absolutely not be possible. Why oh why, since no-one on iStock ever seems to be able to write anything clearly and unambiguously, won't they pay the Plain English Society to do it for them? H*ck, even their contributer support department are divided on what the clauses actually mean.
But it's almost certainly deliberately amibiguous. So if we question something unfavourable/unfair to us they'll interpret it to their benefit, but if anyone had the money/energy to take out a legal case, they could say, "Of course it doesn't mean that, it means this."
Essentially, all of their legalese is gobbledegook, and there is no need for it to be so. Even legalese can be written in Plain English.

« Reply #31 on: January 13, 2011, 18:17 »
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As I understand, it is not a change in the agreement that is being discussed, but a person signing up (or not) to an agreement that he considers unfair.

And we all signed up (and still sign up) agreements that allow unilateral changes without requiring any further consent.

This is not the ethical way to do things, but it is not illegal (I suppose) and so it's up to us to think twice before signing up an agreement that has terms we do not agree or clearly understand.

« Reply #32 on: January 13, 2011, 19:01 »
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Any legal agreement has to be fair to all parties.

True. So nobody needs to sign an agreement he doesn't feel is fair.

In real world, people sign unfair agreements all the time. Why? Because they have to survive, knowing they have to choose between a rock and hard place. It is particularly true when someone is in a vulnerable position.

lisafx

« Reply #33 on: January 13, 2011, 19:12 »
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In real world, people sign unfair agreements all the time. Why? Because they have to survive, knowing they have to choose between a rock and hard place. It is particularly true when someone is in a vulnerable position.

Absolutely.  I think about this every time I read someone saying "If you don't like it, just leave".  It isn't that simple. 

Anyone read "The Jungle".  I am sure those meat packing plant workers didn't want to work in those unsafe conditions, where they were as likely as not to wind up IN the sausage, and for pitiful slave wages.

Not saying microstock is comparable to those conditions at all (yet ;) ), but if you are rely on your microstock income to pay your bills, walking away isn't always a realistic option. 

Of course, the more money the agencies take, and the less contributors make, the more realistic the option of leaving becomes.  But at the moment, only people with significant other income streams, are able to just leave altogether. 

« Reply #34 on: January 13, 2011, 19:36 »
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In real world, people sign unfair agreements all the time. Why? Because they have to survive, knowing they have to choose between a rock and hard place. It is particularly true when someone is in a vulnerable position.

Absolutely.  I think about this every time I read someone saying "If you don't like it, just leave".  It isn't that simple. 

I totally understand that. But it's not like someone put a knife in your throat to become exclusive (I don't think even IS would reach that point :D ), so you can not say you were forced to accept the exclusivity terms, no matter how absurd they may be.

Maybe it's nave from me saying that, but I don't believe that all this talented people here had only microstock as a choice to earn a living.  It is maybe the more convenient, the funniest, the more rewarding.

« Reply #35 on: January 13, 2011, 20:51 »
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In real world, people sign unfair agreements all the time. Why? Because they have to survive, knowing they have to choose between a rock and hard place. It is particularly true when someone is in a vulnerable position.

Absolutely.  I think about this every time I read someone saying "If you don't like it, just leave".  It isn't that simple. 

I totally understand that. But it's not like someone put a knife in your throat to become exclusive (I don't think even IS would reach that point :D ), so you can not say you were forced to accept the exclusivity terms, no matter how absurd they may be.

Maybe it's nave from me saying that, but I don't believe that all this talented people here had only microstock as a choice to earn a living.  It is maybe the more convenient, the funniest, the more rewarding.

Thank you, Lisa.

Adelaide, have you ever complained when you felt that the agencies were unfair? Did you just pack and leave? Or do you think you have always been treated fairly and exactly as you had expected from the agreement you signed with all your agencies?

If I raise the issue, it is not just because of me, it may affect you or someone else one day.

« Reply #36 on: January 13, 2011, 23:06 »
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I doubt anyone has the money to take the contract through the courts to see what's enforceable, but it's quite possible that lots of these terms aren't, even if we signed the contract.

These types of take it or leave it (adhesion) contracts may be deemed unconscionable if they are essentially all to benefit the party in the stronger bargaining position (that wouldn't be us, the contributors). All those unfair terms are really the big dog growling and snarling loudly to get all the little dogs to stay in line.

I think the simple way to deal with the silly clause about rejects is to make your mind up which shoots go where and don't submit anything to iStock that you want to sell elsewhere. If there's a reject that you really care about, ask permission and they'll probably give it.

traveler1116

« Reply #37 on: January 14, 2011, 00:23 »
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And be aware, as also mentioned, that as an exclusive, you're not permitted to sell rejected content elsewhere, even as RM, without permission.

As far as I know, you are !

Not according to iStock support.  I've asked.
I had some rejected for potential copyright that they said I could sell as RM elsewhere.  Send the question to support if you are in doubt.

« Reply #38 on: January 14, 2011, 16:43 »
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Adelaide, have you ever complained when you felt that the agencies were unfair? Did you just pack and leave? Or do you think you have always been treated fairly and exactly as you had expected from the agreement you signed with all your agencies?

Of course I complain - we all did here and in stock sites fora - but have we ever really changed something, apart from a few cents here and there?

My point is, regarding the discussion of IS exclusivity agreement, people have a simple choice, not going exclusive if they don't agree with the terms, like rejected vs RM cited here. If someone doesn't agree that rejected images may not be sold even as RM (apparently may be, if IS allows you on a case by case basis), then don't go exclusive. This is one point that needs to be taken into account when doing a choice for exclusivity anywhere (and in DT, you can not even sell as RM, which is ever worse).

Now, when we talk about the change in license terms, I agree they should not be changed, but they are. And even if we have the legal right to fight against the changes, if the "we can change the license terms at any time" is illegal, ok, we can go into a judicial battle. Would any of us do it? I am in Brazil, IS in Canada - would it be worth the fight?  This is certainly what they count on. 

Unfortunately they are in a better position and unfortunately our only choice in these cases is either concede or resign.

RacePhoto

« Reply #39 on: January 15, 2011, 02:58 »
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gostwyck is right and this same clause has been quoted before. The important words are in red... this is what's Not Included, so it is allowed.

The second point is that they claim that people cannot sell elsewhere, works which they have refused, which I find interesting. I don't know how they can do that, but they try. Last of all the question of similars, which we've mashed before. Same model, same setting, same outfits? No Way. They are too close to the same shot. You can't just take some shots and say these are RF for IS and then pick some more from the same shoot and say, these are RM for site "X".


Apparently they have expanded their interpretation to the exclusive agreement to RM. It was meant for RF. This is so unfair.
I don't think this is true. Here's an excerpt from the Artists Supply Agreement (Exclusive) on their site now;

"... but shall not include (1) Content that is produced as "work for hire" within the meaning of United States federal copyright legislation or is otherwise the result of a specific commission by a bona fide client of the Supplier evidenced by written agreement where the Content deliverable from such commission is for the personal use of the client and not for resale or license to any other person or entity, except to the extent Supplier retains in such Content any royalty free rights of the type outlined in the Content License Agreement; (2) Content that is produced for "Editorial" purposes except to the extent the Supplier is certain that such Content may be licensed, sub-licensed and/or distributed on a royalty free basis as in the Content License Agreement, where "Editorial" means visual reporting to illustrate general interest and specialty stories for information, documentary or photojournalism (but not advertorial) purposes only; (3) Content that is "Rights Managed", which is defined as Content produced by the Supplier and licensed for a fee that is based on one or more limited uses and for which usage history is tracked; (4) Content that is of a category not currently offered for sale by iStockphoto; or (5) other Content specifically designated by the Supplier and agreed by iStockphoto as being non-exclusive Content."

ShadySue

  • There is a crack in everything
« Reply #40 on: January 15, 2011, 05:51 »
0
See Content that is "Rights Managed" is excluded? I am talking about fresh images with no sales history.

Non-submitted content is fine to sell RM.
And even unsold accepted content (once deactivated from iStock).
Wait -- really?

So accepted (unsold) exclusive photos that is de-activated can be sold as RM, but rejected exclusive photos cannot?

There's something wrong with that picture.


And what happens if someone were to re-submit a de-activated photo and it's rejected? Now all of a sudden it can't be sold as RM?  :D

Yup, there are crazy anomalies. Some months ago JJRD said they were going to review that. Either it didn't happen, or the looked at it and decided not to change it.
As others have said, you have to plead your case with Support, and it depends on who your email lands with. Or maybe policy has changed, as I haven't requested a release for a few months. I was always given permission, but I've heard some recent incidences where people have been refused.
The problem with having such badly-worded contracts is that it leaves you at the mercy of the whim of someone else's interpretation of the ambiguously-written rules.

RacePhoto

« Reply #41 on: January 16, 2011, 01:43 »
0
See Content that is "Rights Managed" is excluded? I am talking about fresh images with no sales history.

Non-submitted content is fine to sell RM.
And even unsold accepted content (once deactivated from iStock).
Wait -- really?

So accepted (unsold) exclusive photos that is de-activated can be sold as RM, but rejected exclusive photos cannot?

There's something wrong with that picture.


And what happens if someone were to re-submit a de-activated photo and it's rejected? Now all of a sudden it can't be sold as RM?  :D

Yup, there are crazy anomalies. Some months ago JJRD said they were going to review that. Either it didn't happen, or the looked at it and decided not to change it.
As others have said, you have to plead your case with Support, and it depends on who your email lands with. Or maybe policy has changed, as I haven't requested a release for a few months. I was always given permission, but I've heard some recent incidences where people have been refused.
The problem with having such badly-worded contracts is that it leaves you at the mercy of the whim of someone else's interpretation of the ambiguously-written rules.

Yeah. like the #5 clause above? Anything that they agree is non-exclusive, you can sell elsewhere. Wide open, as you say, and subject to their whim.

For people who are looking for every little flaw and loophole and what if, there is an easier way to look at this. If it doesn't say you are allowed to do something, then you can't do that! It's not about listing every possible and conceivable situation, because there are so many possibilities and variations. It's about listing what you can do, assuming if it's not listed, then you Can Not.

Does that help?


 

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