Photographer Licenses Photo To Shutterstock, Is Shocked When It Plays Out Exactly How Everyone Would Imagine
from the brutal-lesson-not-completely-learned dept
Sometimes the best advantage is the advantage you take of yourself [?]. Canadian photographer Michael Stemm feels he's somehow been robbed of a market for his photography via affirmative steps he took to ensure the market fell into another entity's hands.
Stemm was shocked to find local Walmarts stocking items featuring a photograph he took. But this isn't a case of Walmart finding a picture on the internet and deciding to keep it. It's a case of "read the fine print" before you surrender your creations to a stock photo agency. Michael Zhang of PetaPixel has more details.
[I]n February 2018, [Stemm] learned of using microstock photography to generate extra income, so he “randomly uploaded one picture” to the stock photo service Shutterstock.
The photographer never read Shutterstock's terms and agreement and never checked his account again after uploading the photo, according to Globalnews.ca.
Stemm says he was then shocked to find his photo being “exploited by big companies.”
It turns out a Newfoundland-based company called Islandwide Distributors (IWD) had licensed Stemm’s photo royalty-free from Shutterstock for just $1.88.
That leaves Stemm with less than $2 to collect from Shutterstock for the hundreds of dollars of merchandise sold by Walmart featuring his photo. That may seem wrong, given the licensing terms, but it isn't. But it certainly seems wrong to Stemm, who has strong feelings about the rights he signed away to Shutterstock.
“Walmart is selling my picture without my permission throughout all New Brunswick,” Stemm writes in the description. “I feel like I am being taken advantage of in this situation.”
Well, no. Stemm took advantage of himself. Something he thought would earn him a little extra money is earning Walmart a far bigger sum. But that's exactly how licensing works. Stemm said Shutterstock could license the photo. Shutterstock did exactly that. The fact that Walmart has more than 500,000 items featuring Stemm's photo is probably unexpected, but if you really want to retain full rights to your creation, you don't hand part of those rights over to a middleman. When Walmart licensed the picture from Shutterstock, it didn't seek Stemm's permission because it didn't need Stemm's permission.
For whatever it's worth Walmart Canada has reached out to Stemm to do… something. Maybe a gift card is in Stemm's future, but it seems unlikely Walmart will ditch Shutterstock and license the photo from Stemm directly. Stemm at least knows why this happened and is unlikely to make the same mistake in the future. But him calling it "unfair" shows he hasn't fully taken these lessons to heart.
It certainly seems unfair when a company can make hundreds of dollars from a $1.88 license. But there's nothing unfair about a process that involves a voluntary relinquishment of control. Shutterstock can certainly find a greater market for someone's photos, but no one should go into this relationship believing it will result in newfound personal wealth.
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Filed Under: copyright, license, michael stemm, microsstock, stock photography
Companies: shutterstock, walmart
Reader Comments
The First Word
“"My picture is so good that Walmart has sold hundreds of thousands of items featuring my picture." Include links to the items on Walmart's website.
Post on your own website where you offer other photos for licensing at more profitable to you terms.
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Who sold those items?
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Depends...
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Re: Who sold those items?
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"My picture is so good that Walmart has sold hundreds of thousands of items featuring my picture." Include links to the items on Walmart's website.
Post on your own website where you offer other photos for licensing at more profitable to you terms.
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Re: Depends...
>It turns out a Newfoundland-based company called Islandwide Distributors (IWD) had licensed Stemm’s photo royalty-free from Shutterstock for just $1.88.
and Walmart is an innocent party in all of this, although they are getting the blame.
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Re: Re: Depends...
As per usual, when someone whines about something they think is being done wrongly, they would rather blame the nearest, richest target than whoever actually did the thing they're complaining about.
Especially here, where it seems the real culprit is the guy doing the whining.
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It's probably a shock, but at least he's learned the hard way that he needs to work for a living without losing much in the process. While he lacked common sense when he posted the photo without thinking about what he was agreeing to, he had it when he decided to test with a single photo rather than uploading his entire portfolio (which, by the way, is how you get passive income from these kinds of places - you're never going to make a living with a single photo).
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You want unfair?
"Bay mir bistu sheyn" netted its composer Sholom Secunda $30 in royalties for selling the rights. Fortunately, the rules of that time let copyright expire after 25 years with an option to renew, so he ultimately got a good second helping.
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Would does that seem unfair?
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Then Walmart would have had to pay 100x as much to get it from Getty instead.
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IP folks have an inflated sense of what their part of the whole is worth.
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Walmart didn’t license the photo, though. Per the article, Islandwide Distributors licensed Stemm’s photo.
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The Early Days of Netflix
Netflix rented disks made of delicious polycarbonate plastic by snail mail with return envelopes.
Then one day Netflix offered movies by some new fangled streaming over the intarweb tubes.
Hollywood, just like the music recording industry didn't have any vision and therefore didn't believe this internet streaming of movies would work out. After all, why would anyone want a service that didn't require you to even get up from your chair to put in a DVD, let you watch any movie you wanted, at any time you wanted, without annoyitating commercials, for cost far lower than cable TV?
Before very long, but still long ago from now, Netflix had quite a lot of really good movie titles.
Like this photographer, I'm sure Hollywood thought they would license their movies "for a little extra money". After all, this streaming thing wasn't going to last or ever take off.
Netflix streaming blossomed. Hollywood must have been green with envy -- how hard could it be to set up a streaming service? Eventually many of those good titles on Netflix disappeared to be replaced with less desirable content. Raise your hands if you remember this?
Like this photographer, I'm sure Hollywood was shocked that someone else could make a lot of money from a licensed copyright work.
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Re: Re:
I can understand the disappointment, but like most people who start whining about how little they get paid for having other people do the work, he's overvaluing what he did. The image was probably chosen because it was the coolest looking photo that fit the search terms when they searched for placeholder images on Shutterstock, not because of any inherent value that people would go chasing for.
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Re:
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Artist signs a deal with a gatekeeper to make all of that money they hear about others making.
Artist assumes gatekeepers are there to protect & help the artists.
Artist see's work in use in commerce.
Artist assumes a windfall is waiting.
Artist gets check for $0.088 cents.
Artist reads terms.
Artist wonders who they can blame other than themselves.
Artist imagines the trillions of dollars they should have been paid.
Gatekeeper cashes their checks.
Artist blames company who followed the law & did everything legally.
Artist screams at 3rd party for robbing them & demands satisfaction.
Wonks try to play this as a big corporation robbing the artist, but blame the other guy not the gatekeeper.
Wonks lobby for more laws to 'protect' artists, but make sure that it is still legal to click a box at the end of 3pt legal contracts online & screw yourself.
Artist becomes another horror story about how copyright scofflaws rob artists blind.
Gatekeeper gets more artists to click the box sealing their fate.
Gatekeepers stay rich, artists stay poor, & they blame everyone else rather than admitting the system is the problem & artists believe the hype that gatekeepers are their friends.
Years later image is used in a fairly popular meme & a flurry of take down notices follow killing it in its infancy.
Content remains locked up and unknown.
Artist laments on death bed that if not for people stealing the content they could have been rich.
100 years later gatekeeper lobbies for another copyright extension because they only had 170 years to squeeze every cent out of the content.
125 years the artists children file a lawsuit against an artist who took a picture that had some similarities and argue to the court that the new artist stole the 'feel' of the original work and they deserve 90% of the profit of the new work.
150 years later, it all repeats once again because somehow artists still think gatekeepers are their friends not foes.
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It gets even better
At least he got "exposure".
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Re: The Early Days of Netflix
special editions missing 90% of the features of a real disc to 'protect' sales...
hell I am old enough to remember Disney putting VHS tapes back into the Disney Vault for a few more decades to drive sales.
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The benefit to Walmart
The benefit to Walmart is not the guy's photography, but a cheap legal picture for them to use. It only became famous and widely used specifically because of its cheap legality. Otherwise they would have used someone else's $1.88 picture.
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Re: The benefit to Walmart
Things are only famous because they stole the content of creators!
I know I often make sure to see which stock photo on bottles is the best when making decisions to purchase things.
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Re: It gets even better
Failure to read contracts isn't any one elses fault.
I note even recently some recording contracts still set money aside to pay back the label for vinyl breakage... even when it was never released on vinyl.
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Re: Depends...
"This one strikes me as a possible misuse of royalty free stock photography"
The level of cognitive dissonance that goes into putting the above two sentences in the same paragraph is frankly astonishing.
If you are interested in commenting on whether this was a possible misuse, perhaps you should read the terms before commenting. Here, I'll help you out:
https://www.shutterstock.com/license
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Re: It gets even better
$1.88
"he can't withdraw the funds until he reaches the minimum threshold of $50"
I've got around $70 hanging around on Amazon and Google's sites from ads on a blog I used to run. The blog no longer exists, and I'm unlikely to run another site with ads at any time in the near future, but I can't access the money as it's below the withdrawal thresholds. But, you won't see me whining about it, because I understood the terms when I signed up and accepted I would have to earn more than I currently have to access it.
"At least he got "exposure"."
He got exactly what he asked for - a photo he otherwise just had lying around on his hard drive and Instagram page to be monetised on a site that licences photos cheaply. If he wants to make a living from them, he needs to either upload more than one photo or use an actual agent to sell his photos individually.
Also, I presume the "exposure" comment was sarcastic, but he's got way more attention here than he would have done had he left the photo where it was.
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More like another case of a document on the internet intentionally obfuscated and made overly burdensome for the purpose of legally grifting people out of something.
I never get how they decide what is and isn't ok to grift out of people this way.. You can't get away with hiding *everthing* in these click throughs, but it is allowed to trick people out of *some* types of things this way.
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Re: Re: Depends...
The best part is that he refers to "royalty free stock photography" when addressing an article that's literally talking about the royalties paid for the photo.
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Re: Who sold those items?
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Re:
In your story the Artist is legally taken advantage of and the correct one to blame is the legislators who make it legal to take advantage of people in this way.
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Most likely, nothing....
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Re:
Yeah, I'm inclined to agree. Yes, this is a case where somebody surrendered his rights without reading or understanding a click-through license agreement -- but everybody does that, all the time. I can understand blaming the artist for not doing his due diligence, but some fault also lies in a system that's extended the definition of "contracts" to include click-through agreements that most people can't understand and nobody is allowed to negotiate.
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Re:
https://www.shutterstock.com/contributorsupport/articles/kbat02/000006640
The plans with size restrictions will generate anywhere from $.81 - $1.24 and the plans with no size restrictions will generate $1.88 - $2.85 per download with a Standard license, depending on your Lifetime Earnings tier. Enhanced license On Demand downloads will generate earnings of 20-30% from the purchase price, depending on your Lifetime Earnings tier.
Then the description of the licences from https://www.shutterstock.com/license:
A STANDARD IMAGE LICENSE grants you the right to use Images:
...
Printed in physical form as part of product packaging and labeling, letterhead and business cards, point of sale advertising, CD and DVD cover art, or in the advertising and copy of tangible media, including magazines, newspapers, and books provided no Image is reproduced more than 500,000 times in the aggregate;
That seems pretty damn clear to me. There may be a question as to whether the photo has been reproduced more than 500,000 times and thus eligible for the 20% on top of the $1.88 that he'd be entitled to, but otherwise he got exactly what he agreed to
This is just a classic case of someone not reading what they signed up for. Or, at the very least, someone asking other people to do the work for them, then getting annoyed when they're not collecting rent after the site is good at their job.
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Re: Re:
Of course there is a difference when one is dealing with millions and millions of parties on the other side. Here is where some form of consumer protection should be applicable. The problem with that is those consumer protections tend to be laws, and every country sees their laws differently. So I am not sure what the answer is, in the end. Getting all countries to embrace a similar set of consumer protections does not seem likely.
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Re: Re: The Early Days of Netflix
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Re: Re:
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Re: Who sold those items?
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Re: Re:
These days it's easier than ever. You put very little effort into doing something, and you're going to get very little back.
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Re: Re: The benefit to Walmart
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Re: Re:
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Re: Re:
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Re: Re:
Thanks. At least my rush job wasn't so badly written that nobody caught on to its purpose.
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Re: Most likely, nothing....
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Re: Re: Re: Depends...
Not the same beast as public domain, which actually is free.
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Re: Re:
"nobody is allowed to negotiate"
Because it would be utterly unworkable if every user of a site could negotiate individual terms.
"Yes, this is a case where somebody surrendered his rights without reading or understanding a click-through license agreement -- but everybody does that, all the time"
Most people don't read any contract properly before they sign, physical or digital. That doesn't mean they shouldn't apply when someone decides they could have got a better deal.
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Re: Re: Re: Re: Depends...
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Re: Re: Re: Re: Depends...
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Re: Re:
Of course you mean "the legislators who did nothing to prevent taking advantage of people in this way", right? And since when is it appropriate to blame someone for doing nothing rather than the person who actually committed the wrong?
Legislators are, by and large, self-serving and otherwise useless but your position is as bad as blaming Walmart for licensing a photo willingly uploaded to an image licensing service.
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Re: The benefit to Walmart
Actually the value to Walmart is the mark-up on the product, made and branded by somebody else. They did not select or license the photo, that was done by Islandwide Distributors (IWD).
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Before the submission goes through, the contract is shown in an abridged format with the major points displayed in “informal” text (with an option to read the contract in full displayed beneath those points). At the bottom of the page is an "I have read the contract and agree to its terms" button that requires solving a CAPTCHA to confirm. After that, the site presents one more “Are you sure?” button (with another CAPTCHA) before the submission goes through. Annoying? Possibly. But which would you rather have: the time to think through and make sure you agree with the terms of that contract, or a situation like the one in the article?
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Re: Re: Re: Depends...
Just think of the Wells Fargo setting policies that drive sales reps to create fake accounts. Walmart is known to put policy pressure on almost everyone who does business with them.
(I am not saying this is the case here)
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Re: Re: Re:
The trouble is though that even though 90% of people might not actually agree with the terms of the sites if they took the time to understand the implications in their particular case, the number of people that it actually comes back to bite in the ass is so small that no one cares until it's actually them.
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Opportunity
Remember the happy hills of Windows XP? A royalty free license. The photographer was kicking himself for selling it so cheap but would Microsoft have used that pic if it wasn't a flat cost license?
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Re: Re: Re: The Early Days of Netflix
The Disney Vault strikes again!
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Re: Re: Re: Re: Depends...
But, that's irrelevant to the situations here. Whatever the issues here, the contract that Stemm is complaining about was done well before Walmart ever got involved. This is a standard contract that would apply whether it was Walmart or a local retailer who licensed the product.
I'm all for them being held to account to their own actions in such cases, but that doesn't apply here.
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Re: Re: Re: Re:
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Re:
"But which would you rather have: the time to think through and make sure you agree with the terms of that contract, or a situation like the one in the article?"
The situation in the article is that the guy didn't conceive that the photo could show up on items in Walmart, and believes that being so visible means that he deserves more money. That would still apply no matter how annoying you made it to sign up.
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Re: Re: It gets even better
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Re: Re: Re: Re: Re: Depends...
So Walmart isn't the one who licensed the photo, they purchased and sold products from someone who did license the photo, and used it on their products. Which leaves Walmart innocent in this instance, but it does not absolve them of their other wonky policies. Which means Walmart is easy to hate and therefore easy to apply blame to, even when it is actually innocent.
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Re: Re:
It seems he believed he should be paid for each item his photo appeared on rather than only once for up to 500,000 uses. Which implies, of course, that he never read the contract he agreed to.
We already have both. You can take all the time you want to read through the terms of service for any site or service you want to use. People generally don't and we end up with the article being discussed.
We don't need any new laws or regulations for this. You can't legislate stupid or lazy out of existence.
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Re: Re: Re: The benefit to Walmart
Always assume anything TAC says is dripping with enough sarcasm you could slip on.
Human nature (and what we've been allowing now far to often) is to assign blame elsewhere & demand change.
The driver was texting, Apple shoudl pay.
My kids are fat, McDonalds should have to remove toys form happy meals.
The bar shoudl pay for serving the driver booze, they should have known he had 14 DUI's & would be a danger.
We need more warning signs to protect selfie takers form doing stupid dangerous things & dying to get a shot.
I saw the kid lick the pole & get his tongue frozen to it in a movie, so its the movies fault my kid decided it was just movie magic & set out to prove it.
DC comics should pay me because my kid put on a bath towel as a cape & tried to fly off of the top of the garage.
It's not the kids fault that he got loaded & killed a bunch of people in yet another drunk driving crash, he wasn't raised right. We shouldn't be angry there was video of him violating probation by drinking, not be angry his mother helped him flee the country to avoid the punishment, he had no understanding of cause & effect so it is societies fault.
I'd give more examples but i'm sick to my stomach right now...
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Re: Re:
Person fails to read contract, cries foul when contract is followed.
The terms & conditions were there, in really plain words according to people who went & read them.
Imagining that this will make you tons of cash because someone else did it and they got paid well, means you are dumb.
Don't ask if they signed the regular contract.
Don't ask if they asked a lawyer to review the terms.
Just assume that because you are an 'artist' you are specially protected.
Car contract said AS-IS, you didn't bother to have your own mechanic check it out and discover there is no engine in it.
Do we need a law saying it has to have an engine?
Do we need a law forcing the seller to go down a checklist of things the average car buyer should do when looking to buy a used car?
The contract says steering wheel extra, so we need laws or we need to slap the buyer who signed the damn contract?
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Re: Opportunity
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Re: Re: Re:
Well there is such a thing as an implied warranty, and some states prohibit "as is" sales attempting to disclaim such warranties.
https://consumer.findlaw.com/consumer-transactions/what-is-an-implied-warranty-.html
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Re: Re:
Hypothetically speaking if shutterstock changed that link tomorrow to say "if you are over 65 you owe us 5000$ each time someone downloads your image" and a bunch of seniors lose their savings because they didn't read carefully, the courts would never enforce it because it would be obvious that the "agreement" is a farce but in my mind at least there is a massive grey area regarding how much they can get away with taking from people by relying on the fact that they know some people won't read or understand.
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Re:
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Re: Re: Re:
Bargaining power is one of the definitions of a legal contract; Techdirt's been noting that for over a decade.
To date, courts have upheld license agreements as legal. That doesn't mean that they should be. Your argument that they're expedient isn't a very good defense; lots of things that violate customers' rights are expedient.
IANAL but it seems to my layman's brain that a typical EULA flags several of the factors for unconscionability. I've already mentioned unequal bargaining power; most EULAs also include clauses limiting warranty, and a provision that the agreement can change at any time without notice (which sounds an awful lot like unfair surprise to me).
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Re: Re:
~piracy~ royalty-free licensing!
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Re: Re: Re:
Or that he read it, but didn't understand it. Which can be the fault of people writing contracts to be as obtuse as possible, but I don't believe that's the case here.
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Re: Re: Re:
Nothing was hidden in the contract, they even go out of their way to explain things in layman's terms, and what happened is exactly as stated in that explanation.
I'm all for consumer protections, but nothing untoward happened here. Your ridiculous hypothetical would almost certainly be illegal. Someone stating clearly up front what your cut will be when they do the work of licensing your image for you, and abiding by that agreement, is not.
If something shady is in the T&Cs, they deserve criticism. That did not happen here.
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Re: Re: Re: Re: Re: Re: Depends...
Which is a dumb way of doing things, but such is human nature, I guess. I prefer a world in which blame is applied to those who are actually to blame.
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Re: Re: Re:
We already have a law for everything. Without the law there is no enforceable contract. You are talking about the law stepping in in more cases than it does currently rather than less.
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Re:
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Re: Re: Re:
Most sites couldn't operate if you needed to hire a lawyer to agree to the standard contract.
Have a business model that makes it easy for no one to balk at your standard contract.
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Re: Re: Re: The Early Days of Netflix
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Re: You want unfair?
I don't sympathize with the photographer because the whole point of those stock websites is to increase artist visibility, and he did that. Distribution is what made his work valuable here, not his copyright.
Compare this to someone who has had their book's titles changed and loaded onto those mass-piracy sites where the illegal downloads ran into the six figures. Sites which write perishable content generally don't have this problem.
With so much work out there on the internet it's hard to stand out. This makes distribution the key to profit, and he got a boatload of that. One would think that his portfolio with this information and photo should generate a great deal of business for him (weddings, etc.).
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Re: Re:
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Re:
As stated many times above, Walmart didn't choose anything. Their supplier IWD bought the photo, and it's unclear from the evidence supplied whether they had an exclusive contract with Walmart or if they just happened to be one of their customers for the resulting products. Even if it is an exclusive contract, it's almost 100% unlikely that they chose their products based on his photo.
Also, you keep saying "photos" in the plural. The guy admit that he only uploaded the single photo as a one-off test to see if he got anything.
"If he can't figure out how to parlay this unexpected PR windfall into more money, he's in the wrong business."
From the linked article:
"The video has since been viewed over 60,000 times, and it attracted the attention of Walmart Canada, which apologized in the comments and reached out."
Chances are, he's getting a windfall from Walmart, who have relatively little to lose here. They can easily throw him a couple of grand or a tiny royalty on the sold products and get cheap marketing for them appearing to be the good guys, even though they didn't do anything wrong to begin with.
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Re: Opportunity
The who9le point of a stock website is to avoid paying the acopyright holder in exchange for introducing their work to a very large audience.
There's no way a photographer whose image was used on a top-selling product like that shouldn't be able to capitalize. This wasn't piracy, but a legitimate business deal in which he's refusing to cash in on what was promised to him (distribution) and delivered.
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Re:
Victim-blaming is sociopathic.
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Re: Re:
Stock websites are for portfolio-building, which is why artists surrender royalties to them. Thanks to the internet, everyone's a creator and producer now, so to stand out one must make this tradeoff.
The difference between this and piracy is that the tradeoff is made *willingly*. I used to design my own cover art rather than use stock because I thought it had no value since anyone else could use it as well.
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Re:
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Re: It gets even better
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Maybe a gift card featuring his picture!
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Re: Re: Re:
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photza service
I prefer to use Shutterstock or pexels. But if I need to create an original photo or picture, I use https://photza.com/ As for me, it is a great service for beginners. Try it
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