A quick note: this post applies to you. Even if you’re not a writer or think of yourself as a content creator.
I had a friend send me a contract (called a “Consent to Disclose/Media Authorization”) that her employer sent to her, that she could “sign” with a single click.
Even though she’s not a professional content creator, if she had agreed to this as written, she would have given her employer the right to use ANY photo, post, comment, review, audio recording, or anything she sent electronically EVEN WHEN SHE WAS NOT WORKING for any reason.
Before I go on, it’s been a while since I’ve written about contracts, so I’m going to state the disclaimer up front:
All of what I’m about to say is in my capacity as a layperson giving advice to other laypeople. I am NOT a lawyer, I am NOT giving you any legal advice. I do NOT represent you or your legal interests in any way. Please do not give me any confidential information. Any such information will not be privileged.
Also, while I use a real example here, I’m following my artistic license policy here. If you think I’m talking about you… well, do you really want to admit to this behavior publicly, when I’ve left you anonymous? Just fix your shit.
Okay, so one of the things I that were very important to me in contracts which rights I purchased a right to use, and what rights I did not purchase. In my big compendium post, I pointed out:
Contracts should explicitly grant rights, and all others should stay with the author. I largely did this – for example, stating that I only wanted print rights. Audio, film, or any other rights to the story stayed with the authors – unless they’re going to use those rights.https://ideatrash.net/2013/08/looking-at-your-contracts-compendiu.html
So I’m going to pick apart the two big problematic clauses of this near-shrinkwrap agreement.
Before I do that, though, I imagine that this started as a pretty straightforward media release. For example, especially for a small company, it can be a real pain to do the overhead of getting each person to sign individual media releases every time you have an event or take promotional videos or photographs. It makes sense to have a media release that lets your employer take pictures, etc, of you at work or at a work function for promotional or internal uses. Absolutely fair.
This goes so far past that point that I’m really uncertain if it is a rights grab, or if someone is really that cluelessly incompetent.
I hereby authorize [EMPLOYER] or any of its affiliated entities to use my name, image, social media post, online review, interview, statement, photograph, video, audio recording, and/or any other form of electronic transmission, in whole or in part, (collectively, the “Content”)
The problem is already evident. There is no limitation whatsoever on the content that the individual produces being able to be used by the employer. It doesn’t say “during work hours” or “at work functions” or “as part of your job description”.
That paragraph gives the employer the right to use ANY ELECTRONIC TRANSMISSION YOU CREATE. That includes every email, text message, phone call, photo, period. Write an inspiring poem or essay? They have the right to use it. Take a cute photo of your kid on the weekend? They can use it in their advertising. You gave them the right to use all of it.
So that’s a huge overreach on what rights that employer wants from its employees.
Another big thing I emphasized with contracts was that it stated how the work was going to be used.
Contracts should be clear about how they’re going to use your work If you are granting, say, short story rights without it clearly being limited to use within a single anthology, the publisher might be able to just sell your individual story as a single or put it in another anthology altogether!https://ideatrash.net/2013/08/looking-at-your-contracts-compendiu.html
So did this “Media Authorization” form limit how the data was going to be used?
for the purpose (without limitation) of displaying or publishing (in paper and/or electronically) the Content in any employee communication, newsletter, advertising, news report, newspapers, magazines, or other printed media, broadcast by means of radio, television or internet transmission, and publication on [EMPLOYER’S] intranet, website, third party websites and/or social medial websites such as Facebook, Instagram, Twitter, YouTube or other similar sites, and as to all, any similar publication or displays (the “Use”).
As worded, it says that as long as they want to “display or publish” your photos, texts, emails, or anything else, then they have the right to on radio, TV, or on the internet (and then go on to list all the kinds of websites they can post it on).
To be clear about how bad this is: If my friend had agreed to this, her employer could find YouTube videos she’s posted of her children and use them in commercials. They could use a picture that she posted to Facebook (even if it was not publicly available) and post it over any statement they wanted to.
There’s actually more – a whole paragraph about how, if you sign it, you can’t sue them or try to get any royalties for anything of yours they use, or how if you decline, a big button saying “INCORRECT” shows up on that employer’s webpage, or how they’re misusing Creative Commons licensed material.
But that’s just extra.
The key part here is that, if you agree to something phrased like this, that you have signed over every bit of creative output you have to your employer. Maybe it wasn’t meant that way when it was written, but do you really trust your employer to not take advantage of something when it goes their way?
With all of us creating some kind of content all the time, whether as an online review, a social media post, a text message, an email, a document, webpage, blog, podcast, vlog, twitch stream, et al, we all have to be aware of contracts and “authorizations” and “disclosures” like this.
Whether merely poorly written or an intention rights grab, the legal result is the same.
Pay attention before you click “yes.”