(Editor’s note: Curtis Smolar is a partner at Ropers Majeski Kohn & Bentley. He submitted this column to VentureBeat.)
The problem can be shown clearly in a recent real life brick and mortar dispute. The artist “Banksy” had painted a mural on an abandoned Packard plant. Both Banksy (or rather the group representing him) and the Packard plant owners claimed ownership of the mural. Because of Banksy’s fame, the mural was potentially worth hundreds of thousands of dollars. Obviously, Banksy didn’t own the Packard plant, but did the owners of the Packard plant own Bansky’s copyrighted work? Could the Packard plant owners reprint the mural on other media platforms?
United States copyright law states that any idea fixed in a tangible means of expression is protected. So, it would follow that if comments are posted on a Website’s “comments” section that the online user’s comments are copyright protected by the law. In the wall analogy, if you own the content, and a Website “reprints it” (and someone else views it), the Website has violated your protected work.
This is not the case with online user content. In the online world, the general rule is that the creator of the content in the Web 2.0 world owns the underlying material. However, to further use the content in online mediums (such as a Website), the creator grants a license to the Website, allowing it to post the user-generated content in whatever manner it desires. So, while you may own the mural, the Website owns the wall and you have agreed that the Website can use the mural in whatever manner it chooses.
The company obtains rights to your work through a user agreement. The language of the terms of the user agreement generally says <deep breath> “by posting or submitting content on our site, you grant the company a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, fully paid-up, transferable license, with the right to sublicense (through multiple tiers), to use, copy, publicly perform, digitally perform, publicly display and distribute (through multiple tiers) such contributed content, and to sell, modify, create derivative works from and/or to incorporate such contributed content into other works in any form, medium or technology, whether now known or hereafter developed, in each case, for any purpose whatsoever, commercial or otherwise, without compensation to you. You agree to waive any moral rights that you may have to your contributed content.”
That’s a lot of lawyer-speak. And most people don’t have the patience or inclination to read through it. Instead, they hurriedly search for the “I Agree” button so they can post their content. Heck, there’s fair odds you just skipped ahead to this paragraph after a few lines.
What it means, though, is the company, can use, reproduce and change anything you submit. It can also create subsequent versions, for any reason – and not pay you any money for the content’s use.
In return, you get the opportunity to use the company’s Website.
Anyone who has ever posted any comments has clicked the aforementioned “I Agree” option. By clicking on that box, or by simply using the Website, it may bind the online users to potentially legally enforceable contracts with the company.
Even if the user agreement is a valid contract, that doesn’t mean every individual term of the agreement will be legally enforceable in court. Courts have occasionally held some contract language is invalid by itself – sometimes because it is too one-sided or enforcing it would violate some law. In such examples, courts have either crossed out the invalid term from the user agreement or void the entire agreement.
In practice, if you want to submit content to any site, then you will have to give the company behind the site the right to your content.
Startup owners: Got a legal question about your business? Submit it in the comments below or email Scott directly. It could end up in an upcoming “Ask the Attorney” column.
Disclaimer: This “Ask the Attorney” post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. VentureBeat, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.