I wrote last month on how some photography competitions are abused by those hosting them in order to grab photographic rights. Unfortunately it seems that this rights grab practice is not just confined to the world of competitions; it has spread. This week two more rights grabs caught my attention;
The Hudson Yards Vessel
Hudson Yards is a newly opened development on Manhattan’s Far West Side in USA. Costing $25bn some of the 25 acre site is now open and includes office space, condo towers, a mall, restaurants and more controversially the Vessel, a 150ft tall climbable sculpture of interlocking flights of stairs designed by Englishman Thomas Heatherwick. The main feature of Hudson Yards 5 acre Public Square, the Vessel cost $200m rises 16 stories and includes 154 flights of stairs and 2, 500 steps. Advance tickets are free, though at time of writing there were 1800 users ahead of me with an estimated waiting time of 35minutes for tickets in two weeks time.
The reason behind the outcry over the Vessel wasn’t the cost, the foreign designer, the location or the ticket price; it was the photography policy. Long and short if you took an image while at the Vessel, Hudson Yards had the right to use that image however they liked. By signing up for entry, according to Hudson Yards T&Cs, you granted them the right to photography, video and also audio recording depicting or relating to the Vessel;
‘… for any purpose whatsoever in any and all media (in either case, now known or developed later).’
Furthermore anyone who then posted these images onto social media agreed to let Hudson Yards use the images for promotional purposes for free and forever, even if they included your face;
‘If I appear in, create, upload, post, or send any photographs, audio recordings, or video footage depicting or relating to the Vessel, I grant to Company the unrestricted, worldwide, royalty-free, perpetual right and license (with the right to transfer or sublicense) to use my name, likeness, voice, and all other aspects of my persona for the purpose of operating, developing, providing, promoting, advertising, and improving the Vessel or any other products or services provided by Company or its sublicensees (in either case, now known or later developed). I understand I will not be entitled to any compensation from the Company, its affiliates, or its business partners if my name, likeness, or voice is used in the Vessel’s marketing and promotions, whether on Company’s website, social media channels, or otherwise.’
When asked about about these T&Cs a spokesperson indicated that such terms were common practice at major attractions and that the terms would continue to be refined. They have been, however if you want to share that image you took of the Vessel on social media;
“ (you) hereby grant to Company and its affiliates the right to repost, share, publish, promote and distribute the Vessel Media via such social media channel and via websites associated with the Vessel or Hudson Yards (including my name, voice and likeness and any other aspects of my persona as depicted in the Vessel Media), in perpetuity.”
So what does this mean? Hudson Yards can not assume the copyright to your images and it does claim to. However these T&Cs, similar to those used in some photography competitions, assume as much as possible short of your copyright. Hudson Yards could have requested the relatively basic right to reshare images posted on social media, however they chose not to, instead claiming as much ownership as possible over your work.
The Vessel is a self described ‘interactive and immersive architectural experience’. In an article in Bloomberg, Jeremy Sheff, the directer of the Intellectual Property Law Center at St. John’s University says (if the Vessel was a work of art) Sheff says, “the artist may have a copyright on the sculpture.” If that were true, “they do have the right to prevent others from reproducing or making derivative works of the sculpture, and a photo is arguably one such reproduction.” Even that, though, is a grey area. “The public also has rights to record public spaces around them.”
Delta Air Lines
Delta, the American airline based in Atlanta, Georgia, operates 5,400 flights daily to 304 destinations in 52 countries. It is the world’s second largest airline in terms of scheduled passengers and, in 2018, ranked 75 in the Fortune 500 of largest USA corporations by total revenue ($44.4bn). The airline operate a loyalty program called SkyMiles which are earned through trips with Delta and can be redeemed with the airline in the form of flights, vacations and upgrades. In association with the program, Delta use #SkyMilesLife, which has 43, 722 posts on Instagram. #SkyMilesLife isn’t a competition, it isn’t a promotion, it doesn’t offer rewards or benefits. It is, according to Delta, a method of viewing travel through the eye of SkyMiles members on social media in order to be inspired. So far, so good. However, according to the T&Cs on Delta’s SkyMilesLife page:
“By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license to publicly display, distribute, reproduce and create derivative works of the submissions (“Submissions”), in whole or in part, in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion on Delta websites, commercial products and any other Delta channels, including but not limited to #SkyMilesLife or #DeltaMedallionLife publications. Delta reserves the right to use or not use content tagged #Skymileslife and/or #DeltaMedallionLife and user will not be entitled to compensation if photo is used.”
The T&Cs continue allowing Delta the right to use your likeness (ie your face), no liability in regards to legal responsibility and that any derivative work from the image ‘are the exclusive property of Delta’.
To quote a phrase from Spider- Man (attributed to Uncle Ben), ‘With great power comes great responsibility’. Almost everyone has a phone. And a camera is now not only an expected feature of a mobile phone, it is often the main feature around which the advertising is based (given the budgets that go into the marketing of a mobile phone, it is easy to forget the main purpose of the device is to send and receive calls). As such everyone now has the power to take a photo. And indeed hundreds of millions of images are taken and uploaded daily to the internet. The issue is that only tiny fraction of these images are taken by people who know and understand their photographic rights. Most people do not know about their rights, enjoying the (superficial) enjoyment gained from taking an image. The examples I’ve highlighted above show how big businesses prey on this ignorance and abuse it. Education and understanding has not kept pace with technology and the digital era.
Just as a pencil or pen enables the user the power to write the written word, it doesn’t make that person a writer, an author or a poet. We need to evolve the idea that a camera confers the title of photographer to all who own and use them. Merely owning a device that allows images to be taken, and occasionally using it, does not make someone a photographer.