Posted Wed Jan 5, 2005 6:33AM
"iStockphoto cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement ...iStockphoto shall have no liability ... your request and expense."
I have several photos of people which I have been holding on to since Thanksgiving waiting to see the new agreement. Long ago for tracking/legal purposes I had decided to only upload any people photos to one site. The site I decided on was Istock. To be blunt, under this new agreement I will need to revisit my decision.
I do not care about abuse of property photos but I do care about the potential abuse of people photos. Why bother having people agree to a download license if Istock has no intentions of enforcing it? Every corrupt individual who reads this agreement will know it's open season on non-exclusive Istock photographers portfolios. What are we going to do about it? I personally wouldn't have the means to fight a legal battle.
I would be willing to grant exclusivity for my people pictures in exchange for my models being protected but I will not put them in harms way for whatever fee. Nor will I give up my personal freedom at this time.
So for those of you with people pictures who are and intend on remaining non-eclusive, what are your thoughts?
Posted Wed Jan 5, 2005 6:40AM
I don't think it means that iStock will not take action against someone who is in violation of the download agreement. More that if someone does abuse one of your images in any way, then you have no right to then sue iStock. Seems logical to me, why should iStock be liable for the actions of a rogue downloader ? That has, as far as I'm aware always been in the agreement.
Posted Wed Jan 5, 2005 7:18AM
Simon, I could accept your interpretation but I don't think that's what it means. What I'm reading is that iStock has no obligation to enforce the download license and if in the event the license is abused and you want iStock to persue the matter you (the photographer) agree to pay all necessary legal fees.
Posted Wed Jan 5, 2005 7:22AM
I don't really see what you mean fullvalue, to me it simply says that iStockphoto is not liable if someone misuses a photo, and legally, it would be impossible for them to guarantee that no one misuses a photo.
I see it as a CYA clause
Posted Wed Jan 5, 2005 7:26AM
Let's play hypothetical senarios. Remember I'm not a lawyer, so I'm trying to interpret this document.
I upload a picture of my best friend. Someone downloads her picture and photoshops her face onto a porn site. I'm not interested in suing iStock. I want to know if iStock will take strong legal action against this party. Or will they only take legal action if I can afford to foot the bill?
Posted Wed Jan 5, 2005 7:35AM
The fact you have cut out part of the paragraph makes it harder to understand, if your going to quote part of the agreement then please include the whole fricking paragraph ! It should read as such :
NOTICE: You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Content License Agreement. iStockphoto cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, iStockphoto shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. iStockphoto will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
Posted Wed Jan 5, 2005 7:37AM
Seems simple and clear to me.
Posted Wed Jan 5, 2005 7:41AM
I'm sorry but it doesn't to me. So what's the answer to my hypothetical question?
Posted Wed Jan 5, 2005 7:42AM
I upload a picture of my best friend. Someone downloads her picture and photoshops her face onto a porn site.
How fit is your friend ? I've heard this situation mentioned a few times on the forums and I've got to say WTF ? Who the hell is going to sit there and take hours and hours of their time to realistically photoshop heads of unknown people onto porn stars ? Unless your friend is a star in her own right I can't see anyone giving 2 hoots to do it. Sure Britney Spears or whatever other current plastic starlet is sure to be fair game to people, but Jo Bloggs ? I don't think so.
Posted Wed Jan 5, 2005 7:49AM
iStockphoto will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
Doesn't that answer it?
Posted Wed Jan 5, 2005 7:49AM
wow that bold became REALLY bold. I jut wanted to highlight it....oh well.
Posted Wed Jan 5, 2005 7:53AM
Well I'm not wanting to inflame this discussion in any way I do see fullvalves concern.
This part of the statement "iStockphoto will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense." seems to indicate that one would have to pay out of pocket for any legal action resulting from the misuse of a downloaded istock image under the non-exclusive agreement.
Perhaps a quick call to support would help you clear this up in the most efficient manner fullvalue.
(Edited on 2005-01-05 07:55:40 by Hogie)
Posted Wed Jan 5, 2005 7:55AM
Simon, it's an easy example of an egregious abuse but you didn't answer the question. I'm missing the part that says that iStock will take reasonable efforts at their expense to enforce the download agreement.
Posted Wed Jan 5, 2005 7:57AM
Ok, that answers the question. Unless I have the money to hire lawyers, which I don't, the download license won't be enforced.
Posted Wed Jan 5, 2005 8:00AM
Hmmm, I think it would be hard to imagine istock not enforcing the d/l license at all... maybe it's there to that iStock is not legally obligated to do so. I would think that they would in legitimate cases...
Posted Wed Jan 5, 2005 8:01AM
Hogie said "Seems to indicate" - I wouldn't take that as definitive. As he also says I think to be sure about this you have to mail support (And I suspect they have a lot of legal questions to answer at the moment so don't expect an immediate response!).. Let us know the outcome!
Posted Wed Jan 5, 2005 8:15AM
I see it as iStock can't be sued for "breach of contract" by the photographer if a member abuses the d/l agreement.
As for the "at your expense section" I see that as they will use "commercial" remedies to protect your images but only at your expense. It doesn't say anything about legal remedies.
Posted Wed Jan 5, 2005 8:18AM
As an aside one of the interesting things about legal documents is that they most often don't express the spirit of the law but rather the letter of the law. Generally that is there function and lawyers are paid to draft documents that protect the entities that hire them and in so doing often come across very mechanically. So what's my point? Well as we are all navigating through this transition remember who and what iStock is. Remember the character of this community and those who manage it. "Your in good hands with
This message brought to you by Hogie! Proud to be exclusive with iStock!
Posted Wed Jan 5, 2005 8:18AM
Often, just an official letter threatening legal actions evokes a response from offenders. iStock says that they will take commercial action ("commercial efforts"), just not legal action.
Posted Wed Jan 5, 2005 8:32AM
It looks like both the exclusive and non-exclusive agreements have almost identical wording concerning the burden placed on the photographers when any kind of legal action is taken, regardless of whether or not iStock wins or loses a case.
While this may be acceptable for professional photographers who carry insurance or belong to groups that provide legal support, it has the potential to send a hobby photographer into bankruptcy.
(Edited on 2005-01-05 08:35:10 by dgilder)