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In the context of a tech conference I'll attend, a big tech company is organizing a social event which requires to RSVP. The process involves a form, with an obligatory check box to the following terms of agreement:

Photo/Video Approval: By submitting your response below, you agree to the following: I grant to COMPANY NAME and its subsidiaries, affiliates, licensees, successors, and assigns (collectively, “COMPANY NAME”) an unrestricted, sublicensable, assignable, irrevocable, perpetual, worldwide, royalty-free license to my, and my minor child(ren)’s (if depicted), voice, image, persona, likeness, and performance in any audio, visual, and audiovisual recordings (including, but not limited to, photographs, digital images, digital video, digital audio, video tape, and audio tape) taken of me by or on my behalf and submitted to COMPANY NAME (the “Content”). This license includes the right to: 1. Reproduce, modify, create derivative works of, and otherwise use the Content or derivative work thereof, in whole or in part, in any manner and matter or in combination with any other material, in any format or media, whether now existing or hereafter devised, including, but not limited to, text, data, images, photographs, illustrations, animation and graphics, video, audio, and all formats of computer readable electronic, magnetic, digital, laser, or optical based media (the “Works”); 2. Publicly display, publicly perform, sell, rent, distribute (directly or indirectly), transmit, or broadcast the Works by any means now known or hereafter devised. I waive all rights, including any right of prior approval, and release COMPANY NAME from, and will neither sue nor bring any proceeding against COMPANY NAME for, any claim or cause of action, whether now known or unknown, for defamation, copyright infringement, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the use and exploitation of the Content. I agree that there is no obligation to use the authorization granted by me hereunder. The terms of this authorization commence on the date the Content is captured and continue in perpetuity. Do you agree that COMPANY NAME may capture and use the content as described above?

The terms used in the form seem quite powerful, especially regarding:

  • the extent of the rights ("unrestricted", "irrevocable", "perpetual")
  • the part about giving up the rights to sue or claim anything.

My questions are:

  • I don't exactly understand what's the scope of the approval, i.e. to which material does it refer. Is it limited to the material taken during the event or is it more general? What is the technical meaning of the phrase "submitted to COMPANY NAME"?
  • How "usual" is this? How often do we approve such terms without reading them? Am I just being paranoid?

In general, for lack of a more rigorous formulation, should I accept it?

Additional info: I live in Germany and the event takes place in Germany, however, the company is a large US based multinational. Also, it might be worth adding that said company deals with and gets its profits mainly from data related business (targeted advertisements, etc.).

  • I suggest adding the tags "defamation" and "contract law". – Iñaki Viggers Aug 25 '18 at 18:51
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should I accept it?

I would definitely reject a clause with those terms even without knowing whether it would be enforceable in German courts at all (it certainly would be enforceable in U.S. courts). As soon as I read the term "create derivative works", I thought about the risk of defamation, a term which the lengthy clause happens to mention several lines below. And defamation is not the only concern I would have about that clause.

What is the technical meaning of the phrase "submitted to COMPANY NAME"?

Unless I misunderstood your question, the phrase refers to records/material provided to the company.

what's the scope of the approval, i.e. to which material does it refer. Is it limited to the material taken during the event or is it more general?

It is more general than the material taken during the event.

The term "create derivative works" entitles the company to alter (and, impliedly, to publish) records so as to falsely depict you as doing or saying something harmful to your reputation. Under U.S. defamation law, a plaintiff's authorization of publications that defame him or her constitutes an absolute defense insofar as the authorization is tantamount to self-publication.

By accepting this clause, you would be authorizing practically anyone to publish defamatory falsehoods about you. I say "anyone" because the company's entitlement extends to whoever the company sells or rents (or assigns) such derivative works.

Likewise, the waiver of all rights for "invasion of the rights to [...] personality" literally entitles the company to privately and/or publicly insult and humiliate you at the event (and of course, to broadcast the act). Under U.S. contract law, a court would conclude that you knowingly and willfully agreed to those terms (namely, the invasion of your personalty), thereby favoring the company's position that your lawsuit should be dismissed.

By way of example, a clown cannot sue his [employer] circus for the cause of humiliation (such as throwing a cake at his face), since contract law would lead to the conclusion that the clown willfully entered a relation in which he knew he might be publicly disrespected. In the clause you reproduce, the signer's knowledge [that he might be disrespected] can be inferred from the explicit waiver of rights to sue for invasion of personality.

The waiver of your rights to privacy is more self-explanatory and wide encompassing, whence I see no need to outline it.

How "usual" is this? How often do we approve such terms without reading them?

The more people consenting to abusive clauses, the likelier these will become commonplace.

Unfortunately, many people either don't read a contract carefully (if at all), or they do read an abusive one and still sign it under the presumption that the other party will never take advantage of the outrageous clauses.

Although U.S. contract law certainly involves a covenant of good faith and fair dealing, the signer's informed and willful acceptance of clauses that essentially authorize defamation, insults, and so forth, makes it significantly harder to prevail in the event that the other party incurs any and all wrongs immunized by the contract.

Am I just being paranoid?

No. You are being careful by thinking it twice before signing an abusive clause which is replete with lawyered verbiage.

  • Thank you, very complete and understandable answer. The part about derivative work is crucial. To me it's still not clear if this would apply to any material submitted to the company in any context from here to eternity, or only to material produced in the context of the event. The formulation seems the most general possible, but I can't believe that it's legal to waive so much with a simple checkbox. – sg350 Aug 26 '18 at 13:28
  • @sg350 I assumed the clause was in the context of that event, although there is no language stating so. Unless another clause restricts/clarifies the scope, the company has a plausible argument in its favor, whereas the signer could avail himself of (1) an argument of equity, and (2) the doctrine of contra proferentem. It is just hard to tell which party would prevail in this situation of outrageous clause vs informed acceptance of wide-encompassing, yet clear terms. The term derivative work is less crucial than it appears bc it is "subordinated" to the unconstrained scope of Content. – Iñaki Viggers Aug 26 '18 at 17:43
  • @sg350 I tend to think that the signer's argument of equity would prevail, although courts are known for making rulings that contravene the law and/or shock the conscience of a reasonable person. – Iñaki Viggers Aug 26 '18 at 17:47

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