What’s In a Word?
It’s new! It’s popular! It’s free! Sign me up!
Just a reminder to you creatives out there, and a discovery moment for all those who sign up for sweepstakes, access to forums, photo display websites, and just about anything offered to you as a free or discounted online service. Whenever they say that by proceeding with the signup, that you accept those boring Terms of Service that few ever bother to read, stop and read them. Some are worded in legalese so that what you’ve previously agreed to will be clear to a judge but not to you. Others, like the sweepstakes example below (which doubles as a join-up for a website and forum), are readable by mortals.
“By posting or submitting any material (including, without limitation, comments, blog entries, Facebook postings, photos and videos) to us via the Site, internet groups, social media venues, or to any of our staff via email, text or otherwise, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are thirteen years of age or older. In addition, when you submit, email, text or deliver or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.
“You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Law, as amended. As such, the copyrights in those works shall belong to THE ——— NETWORK from their creation. Thus, THE ——— NETWORK shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as THE ——— NETWORK determines. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to THE ——— NETWORK all proprietary rights, including without limitation, all copyrights and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.”
The above is boilerplate, more or less. Very, very common. Meaning? Anything that you post anywhere on their site – anything – by posting it, you automatically claim rightful ownership of it or have the express consent of the owner to post it. Sure, you may not own it, but if they glom it and find out the hard way that you don’t own it or have posted it without the legal right to and they’ve lost money in the process, they can come after you for reimbursement because that was your claim when signing up. Your ownership simply establishes their “right” to take what they want, which is Point B: by the terms you agreed to when signing up, your comments, your photos, your designs, your ideas, your imports of things on your blog or Facebook page, your “How to” PDF-book, your puppy photo, your patented idea or that one you wonder whether it can be patented at all – you agree to license to them for any purpose at all, including selling it to others or using it for their own gain in any other way, without limitation, forever. And they don’t owe you a dime, acknowledgement or thanks. Your copyright, trademark, or patent shown or mentioned, you just gave them license to, for free, along with the right to do whatever they want with it. That kernel of a great movie script idea? Theirs, and they don’t need to inform you that they sold the concept and pocketed the cash, because you licensed them those rights. That canyon sunset photo that took you 10 hours in Photoshop to get just right? Theirs, thanks.
The second paragraph simply covers the fact that anything which you submit directly to them to potentially use becomes theirs alone, and that you lose all rights to it. That clever idea on how to market or promote more effectively, that little insight, that better logo that you submitted, hoping they’d pay a few bucks in compensation – they already own it, and you no longer do. And, any references you make to your prior creations that you post after your submission, they also own now, not you. To make sure that the protest door closes solidly behind you, I suppose that they might mail you a check for a dollar so that a bonafide copyright sale is established. That way, your $300/hour attorney can save you money by telling you to forget about it and go on with life. Courts don’t deal in justice or morality, they deal in what is lawfully permissible, agreements, contracts, and the legal rights of the parties under them. Indignance doesn’t count.
All I’m recommending is to avoid being indiscriminate about what you sign up for online, as if all these outfits are just little shops along happy Main Street USA at Disney World, joyfully offering you new opportunities to benefit. You may shrug, with the assumption that you’re not a creative person, never do much that’s interesting, or never have neat ideas. But by signing Terms of Service like the above, you’ll be leaving the accuracy of that assessment up to them.