The Associated Press Has Some Explaining To Do About Its 'Tweeted Contract' To Reuse Viral Content
from the this-is-bullshit dept
Five years ago, we wrote a post detailing the crazy permission-asking media scrum that forms on Twitter when people post photographic or video documentation of something major happening. Under such tweets, you’ll often see dozens of reporters asking for “permission” to use the images or videos in news reports. In many cases, fair use would likely cover the usage, but news organizations are understandably gun shy about copyright lawsuits from greedy lawyers who would be all too quick to sue them for merely embedding a tweet.
However, it appears that the Associated Press takes this to absolutely insane, and legally problematic, levels. And it appears that the AP would rather not talk about this.
You may have seen that, over the weekend, there was an explosion in downtown LA. Others in Los Angeles were able to see the fire and posted images and videos on Twitter. One of these was Brian Magno, who tweeted a 21 second video of the fire:
— Brian Magno ? (@brianmagno) May 17, 2020
In response, the usual media scrum descended. Among them was an editor for the Associated Press, named RJ Rico. Rico didn’t just ask for permission to use the video, like most other reporters, but with the request, he posted an image of what he called a “social media release form.” I can’t link you to the tweet because by Sunday evening Rico had protected his Twitter account (we’ll come back to that later). Thankfully, I got a screenshot before all that happened:
The “Social Media Release Form” is truly a piece of work. Here’s what it says:
Social Media Release Form
Please respond to this message with confirmation that you agree to the following:
The Associated Press and its subsidiaries and affiliates (“AP”) shall have the world-wide, non-exclusive right to (and all consents necessary to) use, reproduce, prepare derivative works of, edit, translate, distribute, publicly perform, and publicly display the content throughout the world in perpetuity by any and all means now known or hereafter created in all media known or hereafter created, and AP shall further have the right to license these rights to others; and
That you are the copyright owner or the copyright owner’s authorized agent and that you are full entitled to grant these rights in favor of AP and that there is no agreement or other restriction preventing this grant of rights. You agree to indemnify and hold harmless the AP and its licensees from and against any claims, losses, liability, damages, costs and expenses arising from any breach or alleged breach of these representations and warranties.
Okay, so, first things first, you should basically never, ever, ever just “agree” to a contract that someone tweets at you as an image. But there are some really problematic elements of this “release form.” First is the fact that it grants relicensing rights to the AP, so that they somehow can pass along this image to anyone they want without any restriction. From this, it certainly seems like the AP could then choose to sell the licensing to others and the original copyright holder couldn’t do anything about that even if he didn’t like it. This term probably isn’t quite as bad as some people are making it out to be, and is more in line with typical website terms of service licensing grants, that just cover that the rights can be passed on to future entities (should the organization come under control of another entity, for example). It’s still pretty broadly worded though, and anyone agreeing to it should be careful.
But the much bigger issue is the indemnity clause, which would mean that if there were some sort of legal dispute over the image, all of the costs would basically fall back on poor Brian Magno. And that includes if there were a legal dispute with one of those licensees down the road that he agreed to let the AP pass along the license to. The indemnification clauses are, tragically, common in many freelance contracts, and I’ve taken to simply crossing them out of any writing contract I’ve engaged in (and have not had anyone push back on that yet). Suffice it to say, no one should agree to these AP terms. If you want a thorough explanation of how these clauses could come back to bite you, this is a good thread:
"[I took the video, I own it, nobody will be sued] so there's no risk for me in granting an indemnity" or "they'll never insist on strict performance of that onerous term" are things I hear at the outset of advising on contracts all the time.
Here are my standard answers:
— Wolf Lawyer (@thewolflawyer) May 17, 2020
A bunch of folks started calling this nonsense out, including lawyer Jay Wolman, who worried that people were agreeing to the “release form” without speaking to a lawyer or understanding what they were agreeing to. In response, Rico blocked him on Twitter, which is pretty fucked up. Indeed, a bunch of law twitter started pointing out how ridiculous this policy is, and Rico started blocking more of them:
— Daniel A. Horwitz (@Scot_Blog) May 17, 2020
In short, you never know if there might be a legal dispute down the road, and there are countless reasons why there might be, even if you don’t care about the image at all. And, yet, if there is, you’ve just agreed to pay a giant company’s legal fees. With a tweet. Think about that.
That’s bad. And, then on Sunday (as already noted), Rico took his entire account private.
I’m kind of wondering what that even means for anyone who agreed to Rico’s tweeted contract in the first place. Unless they took a screenshot of it, they can’t even prove that they ever saw it or what they agreed to — because it’s now hidden away.
Wolman began investigating this entire practice, and has traced it back at least to 2015 (coincidentally, a month after my article about how this Twitter media scrum descends on such things):
— Jay Marshall Wolman (@wolmanj) May 17, 2020
This is a horrific practice by the Associated Press, and it really should (1) apologize, (2) revoke any of those agreements for anyone who did agree to them, and (3) no longer do that again.