(Bloomberg)—The Vessel has been open less than four days, but that’s all it needed to generate an outsize amount of controversy. (Notably, the 150-foot-high copper-colored staircase has been compared to a giant shawarma.)
The most recent mini outcry has to do with its photo policy. Simply put: If you took a selfie with the Vessel in the background, Hudson Yards had the right to use the photo however it wanted.
Anyone who signed up for the Vessel’s timed entry automatically granted Hudson Yards the right to their “photos, audio recording, or video footage depicting or relating to the Vessel” for “any purpose whatsoever in any and all media (in either case, now known or developed later).”
Further, anyone who signed the terms and conditions and then posted pictures of the Vessel on social media agreed to let Hudson Yards use those images for promotional purposes for free. Even if those images included the visitor’s face. Here’s the language:
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.
“The intent of the policy is to allow Hudson Yards to amplify and reshare photos already shared on individual social channels through our website and social channels,” wrote a Related Companies spokesperson, in response to Bloomberg’s inquiry about the policy. “This is a practice utilized at nearly all major attractions and we wanted to over communicate, be transparent and disclose to all users. We are refining the language to be more clear.”
The updated language, the spokesperson continued, will refine the conditions so that it’s clear that the licensing use is exclusively for photos taken in and on the Vessel, so a passerby snapping a photo from 11th Avenue will be exempt from any binding legal restrictions.
That language might not even be necessary, says Jeremy Sheff, the director of the Intellectual Property Law Center at St. John’s University. Companies try to use this kind of language “all the time,” he says, “but there are questions about which circumstances in which it’s enforceable.” All of those people using social media have already “signed away lots of rights,” he continues, “just by clicking ‘accept’ in the terms and conditions.” Whether or not the violation of that waiver is actionable, however, “is a complicated question.”
The issue is further complicated by the nature of what, exactly, the Vessel actually is. Hudson Yards describes it as “an interactive and immersive architectural experience.” If it was an actual art object, 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 gray area. “The public also has rights to record public spaces around them,” he explains. “Copyright has always been in tension with First Amendment rights, and reconciling the two is often a difficult problem.”
To contact the author of this story: James Tarmy in New York at [email protected]
© 2019 Bloomberg L.P