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Change to ASA

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mikedabell
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Posted Wed Nov 7, 2012 12:39PM
I feel that the change to the agreement is under hand , but more importantly to do it with out notice, is an admission that they have been, by the terms of the first agreement been under paying us for the best part of 4 years.
lostinbids
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Posted Wed Nov 7, 2012 1:11PM
Posted By DonMcGillis:
At the risk of incurring the wrath of forum participants, with regard to amending the ASA, I’d point to the following:
Clause 16e in the General section of the ASA states: "This Agreement can be amended . . . by iStockphoto posting amendments on the Upload portion of the Site." There is no provision for iStock to provide notice.
There may be some confusion that arises from the sentence that immediately follows in the same clause which reads:
 “Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.” This does not mean iStock has to give contributors 30 days’ notice. It means that if a contributor uploads even once we have agreed to the change or if we don’t terminate our agreement with iStock within 30 days of the amendment then we have accepted the change. This is typical of a “deemed acceptance” clause.
This is different from Rate Schedule changes which are governed by Section 5 (a) in the Compensation section, where 30 days’ notice is required.
If there is another clause in the Agreement that appears to obligate iStock to offer 30 days’ notice with regard to amending the Agreement, I’m not sure where it is and in any event, I suspect iStock would rely on this deemed acceptance clause.
I would also suggest that iStock will not comment on the contributors’ interpretation of required notice issue because to do so could undermine their position in the event of a future dispute (i.e. litigation).
The scope of my post is limited to the amendment rights we’re all governed by under the ASA, it has nothing to do with potentially misallocating compensation to contributors which, I believe, is a separate issue.

(Edited on 2012-11-07 11:58:28 by DonMcGillis)

(Edited on 2012-11-07 12:40:37 by DonMcGillis)

Don, the section that was changed was 5(a).
DonMcGillis
Member is a Bronze contributor and has 250 - 2,499 Photo downloadsExclusive
Posted Wed Nov 7, 2012 1:29PM

@ lostinbids, You are 100% correct. However, a change to 5(a) is an amendment to the agreement (no notice required), a change to the Rate Schedule as described 5(a) requires 30 days notice. Don't misunderstand me, I'm not thrilled with the situation but I think this is what we all agreed to.
mightyisland
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Posted Wed Nov 7, 2012 1:47PM
Posted By DonMcGillis:

@ lostinbids, You are 100% correct. However, a change to 5(a) is an amendment to the agreement (no notice required), a change to the Rate Schedule as described 5(a) requires 30 days notice. Don't misunderstand me, I'm not thrilled with the situation but I think this is what we all agreed to.

If this were the case, would HQ not have been in here from the off to stop all the speculation? Personally I'd be happy with a working site and sales on a par with 12 months ago than trying to squeeze IS for any form of back payments if as you say no notice was required. I accepted the agreement so don't really have a leg to stand on?
lostinbids
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Posted Wed Nov 7, 2012 1:52PM

^ The change made to the agreement was a change from total and to net in appendix a.  This would mean a change to the rate paid. 


Net has been in the ASA for ages, unfortunately none of us (contributors) know exactly what it means, as there isn't a definitions section of the agreement or any appendix that accompany the document.  Total crept in after standard pricing was mentioned. My assumption is that standard pricing is credit card sales as the appendix mentions file licensed by credits (again nothing defined).


After having a really good read of both the ASA and the appendix a, I feel that is I had written it, I would be either very dissapointed or very pleased with myself for coming up with an agreement so vague, depending on my intention.
DonMcGillis
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Posted Wed Nov 7, 2012 2:41PM

I am a tiny contributor so I can't make valid judgements about my volume here, it's all about the same for me . . . tiny.


I agree with the spirit of your comment mightyisland, in that I'd like to see iStock gain both dominance and percieved dominance in this market. I also tend to agree that trying to clawback unpaid fees (however valid the claim may be) is a long and difficult road. That said, I don't have nearly the same vested interest in "backpay" as the major or mid-tier players, so for me this is a throwaway.


I also think that if I were a senior manager iStock I'd find these issues a distraction from trying to grow the company which, one can only hope, is how our management is compensated. Growing the company that is, not squeezing out profits on the backs of Artists.
mightyisland
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Posted Wed Nov 7, 2012 3:12PM
Posted By DonMcGillis:

I am a tiny contributor so I can't make valid judgements about my volume here, it's all about the same for me . . . tiny.


I agree with the spirit of your comment mightyisland, in that I'd like to see iStock gain both dominance and percieved dominance in this market. I also tend to agree that trying to clawback unpaid fees (however valid the claim may be) is a long and difficult road. That said, I don't have nearly the same vested interest in "backpay" as the major or mid-tier players, so for me this is a throwaway.


I also think that if I were a senior manager iStock I'd find these issues a distraction from trying to grow the company which, one can only hope, is how our management is compensated. Growing the company that is, not squeezing out profits on the backs of Artists.



You're exclusive so IMO as important here as people that have sold 100 times what you (or I) have. Before the sh*t hit the fan we were all happy - I'd like to get back to that happy - just SELL MY STUFF - my royalties we're fine pre ASA change, and they are fine now. I've no problem with what I get from a sale, just the lack of sales. 


IMO IS should do whatever it takes to get the customers back AND fix the site - drop the prices a little, offer incentives that blow the competiion away do whatever needs to be done but C O M M U N I C A T E this to the contributors that enable you to make the money you make.


 


@lostinbids - have you ever signed a contract that didn't bias the writer of the contract, or in that fact, written one that gave favour to the other party? smile I didn't read the choofing thing properly before I agreed to it - I was selling loads of files - didn't care. I'd rather have 32.54399322% of something than 35% of jack-sh*t. (based on my own royalty figures) lets just get it back on track, have the BEST exclusive content and start selling again. 


I'd also like to add here that I think IS should look to improve what they offer exclusive contributors some how - we're suffering whilst others that complain about things here are selling elsewhere. Exclusives DON'T sell elsewhere we deserve premium treatment.

(Edited on 2012-11-07 15:24:58 by mightyisland)
lostinbids
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Posted Wed Nov 7, 2012 4:39PM

Mightisland, yes I have signed a contract that treated each side equally.  It was a co-existance agreement between two companies It took a long time to sort out correctly, there were a lot of clauses in their to protect both parties with the main out come that each company could continue and work by guidelines not sue each other or pass off as each other.  There is certainly a couple months of my life I wont get back sorting that out, but that was my job.


And I completely agree with you.  Getting back on track taking photos or drawing stuff is alot more profitable than harping on about contracts that realistically we have no say in.
DonMcGillis
Member is a Bronze contributor and has 250 - 2,499 Photo downloadsExclusive
Posted Wed Nov 7, 2012 5:39PM
Then we're agreed, back to work and let's have IS management do what they get paid for, market and sell our content. Think they hear this? Ms. Rockafellar?
jpsdk
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Posted Thu Nov 8, 2012 2:33AM

Playing with exchange rates and make them artificially high is the certain route to loosing customers from the affected currency.


Its a very naive way of trying to make money.


Maybe Istock doesnt know that, situated in Canada and not being used to handeling currencies.


We who were brought up in Europe, with a multitude of currencies, have seen all kinds of exchange rate manipulation attempts fail.


Customers from Europe will look throug that attempt in a split second and become annoyed. They will also think: "Aha, - so istock is doing the old bordertrade trick. Nice to know, now I know they have a low business moral, what else can I expect?"


So with this move iStock annoys both customers and contributors. Not smart.


 
mikedabell
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Posted Fri Nov 9, 2012 2:49AM
Does anyone know what % of Istock sales are not in $ ?
Leontura
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Posted Sat Nov 10, 2012 1:22AM
Posted By mikedabell:
Does anyone know what % of Istock sales are not in $ ?


Alexa isn't accurate but they put the number of american visitors at 26 percent. By my calculation (based on photomorphics underpaid sale and George Clerk's information) Istock should have paid around 15 percent more for overseas sales since 2008.


But this hasnt been confirmed (or denied) by istock. I hope they will correct my numbers if Im wrong.
jtyler
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Posted Sat Nov 10, 2012 5:06PM
Wouldn't it be nice to trust and respect the people you hire to market your IP? That's long gone from here. Too bad. It may be legal, but it's sleazy.
DonMcGillis
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Posted Sat Nov 10, 2012 8:22PM
Yup, that's the word.
Leontura
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Posted Sat Nov 10, 2012 8:42PM
Posted By jtyler:
Wouldn't it be nice to trust and respect the people you hire to market your IP? That's long gone from here. Too bad. It may be legal, but it's sleazy.

The problem is that it's not legal. You can't alter a contract to retroactively lower the amount you should have paid. By my understanding if anyone takes them to court at any point within a few years, they'll win. That's why we need some clarification on this- if it isn't as it looks, it might be a good idea for istock to correct those of us who see it like this.
jtyler
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Posted Sun Nov 11, 2012 6:38AM
@Leontura (can't seem to respond to quotes) Anyway - if it is illegal then perhaps we have grounds for a class action suit. I'm willing to bet this is not going to be changed by a change of heart on their side. I really hate this "we" against "them" stuff that never used to happen before. Makes me very sad.
lostinbids
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Posted Sun Nov 11, 2012 8:16AM
^ you do realise that it would be under Canadian law, which would mean you would be liable for istock's costs if you lost. I really don't think this is a goer.
DonMcGillis
Member is a Bronze contributor and has 250 - 2,499 Photo downloadsExclusive
Posted Sun Nov 11, 2012 12:57PM

The change to the contract is a separate issue from any previous possible misallocation of royalties.


Leontura is correct in that a party to an agreement cannot unilaterally change a contract to reverse past 'misdeeds'. In this context, any change in the contract would only be effective from the date of the amendment to the contract moving forward. 


What appears to be a stake here is that for a defined period of time, one party failed to appropriately compensate the other party (or parties) as agreed under the contract that was in force for a specific amount of entitled remuneration. If it can be demonstrated that one party underpaid another party for that specific period time by a specified amount of money, then there may be grounds for a dispute.


Lostinbids is also correct in that class action suits in Canada don't have the same track record as they do in the US.
mikedabell
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Posted Sun Nov 11, 2012 3:39PM

If it's 15% do the calculation and send them an invoice, if they dont pay in the UK it could go to the small claims court and let them decide.
Leontura
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Posted Sat Nov 17, 2012 12:34AM
Posted By Leontura:

Posted By mikedabell:
Does anyone know what % of Istock sales are not in $ ?

Alexa isn't accurate but they put the number of american visitors at 26 percent. By my calculation (based on photomorphics underpaid sale and George Clerk's information) Istock should have paid around 15 percent more for overseas sales since 2008.

But this hasnt been confirmed (or denied) by istock. I hope they will correct my numbers if Im wrong.

It's amazing that I could post this and not receive any official reply.
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