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:

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:

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:

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):

It's possible it goes back even earlier, but as Wolman has investigated, another AP reporter blocked him and then went private.

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.

Filed Under: embedding, fair use, indemnification, journalists, permission, rj rico, scrum, social media release, tweeted contracts, viral content
Companies: associated press


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  • identicon
    Al Dante, 18 May 2020 @ 11:18am

    I see no benefit for Brian Magno to agree with it.
    AP or others can still use it, although I imagine they want to own it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2020 @ 11:31am

    University of Virginia Library does the same thing

    https://small.library.virginia.edu/services/publishing/

    Any use of Special Collections images or materials is subject to the user or recipient’s agreement to indemnify and hold harmless the University of Virginia, its officers, employees and agents from and against all suits, claims, actions and expenses. By your use of these materials, you agree to these responsibilities, including the noted legal protections of the University of Virginia.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2020 @ 11:37am

    Whaaaaat the actual fuuuuuck.

    And then they block people. What?

    I mean.

    What?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 19 May 2020 @ 8:43am

      Re:

      I was blocked by a sex toy store b/c I asked questions about the security of their blue tooth enabled toys. I had read a paper on "Screwdriving" its like war driving but with more vibrations.

      Then there was a paper from Defcon or similar where they managed to implant a payload that could be delivered by the device.
      Imagine having to write up THAT incident report.

      The payload paper sort of glossed over what sort of commands it might take in regards to the motor or battery. You've seen phones explode... fill in that blank for yourself. But a majority of them all use the same chipset, offer no security, and anyone who reads a couple papers can get all of the info they need to locate & control remote toys in others.

      But better to block than to hear someone saying things you don't want to hear.

      reply to this | link to this | view in chronology ]

  • icon
    MinchinWeb (profile), 18 May 2020 @ 11:47am

    Consideration?

    I remember from my law class at university that for a contract to be valid, there had to be consideration (effectively something of value) offered from both parties. That consideration could be very small (a peppercorns, on demand, is an often used example), but it still has to be there.

    So is AP offering anything in consideration? It would appear not, and in that case, this isn't a valid contract!

    reply to this | link to this | view in chronology ]

    • icon
      DB (profile), 18 May 2020 @ 7:29pm

      Re: Consideration?

      I wouldn't stand on the lack of consideration making the contract invalid.

      The AP could claim that promotion of the photo was consideration.

      Which sounds absurd until you realize that many "news" stories are made available at no cost by PR agencies. Read the 'Home and Garden' or 'Fashion' section of a local newspaper and you'll find plenty of those stories.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 May 2020 @ 11:55am

    'I said stop looking behind the curtain!'

    Rather than blocking people that point out how terrible the 'deal' they are offering is, confirming that it is in fact horrible and they have no defense, they should have just owned it, acknowledged that they didn't mean for it to seem to terrible but with people pointing it out they'll be dropping it and replacing it with something else.

    Blocking anyone who calls them on the atrocious 'deal' they offer just leaves them looking unprepared, unprofessional, and likely to pull the same stunt in the future. Not good looks to put it mildly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2020 @ 11:58am

    Seems familiar

    Just like standard baloney click contract garbage. All that’s missing is binding arbitration.

    reply to this | link to this | view in chronology ]

    • identicon
      Another Anonymous Coward, 18 May 2020 @ 2:00pm

      Re: Seems familiar

      Right. Forgot about that. It'll be in the next version, with a retroactive application to all existing contracts.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 18 May 2020 @ 12:49pm

    Love our laws.

    HOw is it, that a person can deny their own rights?
    I find it entertaining that we have Law/rules/regs about our rights and responsibilities..and we can give them away.

    Why in hell, did we give these rights in the first place only to let others take them away.

    We debate the Authorship, and giving the family rights to the Materials created, for generations. But an Artist creates for his own needs and Creativity. After its sold, it no longer belongs to him. Be it book, scripts, music, movies..
    The creator tends to get pennies on the dollar, compared to A licensed/rights holder, sending all of it over the world.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 19 May 2020 @ 4:09am

      Re: Love our laws.

      HOw is it, that a person can deny their own rights?

      Consent is the foundation. If I'm competent and informed, and the contract is not unconscionable, why should I be prevented from waiving (certain) rights in exchange for something valuable to me? There's the possibility of people being taken advantage of, but that is always the case when there is a power imbalance, regardless of what rules are set up.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2020 @ 2:13pm

    Hey! We on this site read Popehat. We KNOW that it is never RICO. ... until it is.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 18 May 2020 @ 11:35pm

    "Dear AP,

    I am the copyright holder. You may use this content if you have your entire staff strip down to their underwear, cover themselves in lime Jello and do the Truffle Shuffle. Upon my receipt of a video proving your compliance, you may use the video for as long as I feel like letting you. I indemnify nothing and you will bear any and all legal costs associated with this content, even if such legal issues arise out of me or others using this content.

    I eagerly await your response."

    reply to this | link to this | view in chronology ]

  • identicon
    Naughty Autie, 19 May 2020 @ 6:09am

    And us ordinary peons get accused of copyright theft if we download a song for free. ITV engage in this shitty behaviour, too.

    reply to this | link to this | view in chronology ]


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