Ask the Attorney - Videos

[This is the latest column from Tubefilter News’ resident new media legal expert, James C. Roberts. Last time he tackled reader questions on how to interpret the ever-resent Letter of Intent (LOI) in new media and online entertainment. This week’s reader question is all about what rights content creators have when they upload their videos to various websites. ]

Q: If I post a video on a website do I lose ownership?

A: The short answer is that it will depend upon the Terms of Use (TOU) for the site. (Sometimes it is called Terms of Service—TOS—or End User License Agreement—EULA.) Read them with care. The general answer is that most TOUs preserve your “ownership” but grant the website certain rights for display and, sometimes, ambiguous rights s to creating derivatives. That can be messy.

But funny you should ask. I recently received an email from Godaddy (a website registrar) announcing changes to their TOU. I thought it would be useful to look at some
of the TOU provisions on this topic.

What caught my attention in the GoDaddy.com email was what seemed to be an assurance as to your ownership of posted content. Specifically:

We added language to clarify that the applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights
(including intellectual property rights) you may have in content posted to your hosted websites.

Well, just what are they talking about? What about other TOUs, for example, Facebook?

Who owns your content and who else can use it and how? Don’t worry, no one is trying to be alarmist—just trying to sift through the language that is an agreement granting
and reserving rights by you when you post your content on the Web. For those of you wanting to see how legal analysis works (at least for me) read on. (And, for those
of you who get bored quickly: Yes, you do “own” the content but the TOS grants GoDaddy a broad right of use under limited circumstances. Facebook is probably safer.)

GoDaddy Terms of Service/Terms of Use

The relevant language in the GoDaddy TOS can be found in Sections 5 and 6. Sure enough, Section 5 now includes almost that exact language. But what one provision
gives, does another take away? Section 6 (“GoDaddy’s Use of User Content”) provides an interesting read. To the credit of GoDaddy, they start with an explicit statement:

If you have a website hosted by Go Daddy or another service provider, you shall retain all of your ownership or licensed rights in User Content posted to your website.

That’s pretty clear. Kudos for GoDaddy. Further down, Section 6 grants a pretty broad license to GoDaddy when that content is posted to the Site. They can use it, sublicense
that right, mash it up, create derivative works.

Don’t get too worried: This license granted by you to GoDaddy turns on the definition of “Site,” which is, well, circular:

This Agreement sets forth the general terms and conditions of your use of this website (this “Site”)

It appears to mean the consumer-facing main website—i.e., www.godaddy.com. So, what it appears to mean is that they have marketing rights, where their website includes
your content.

OK, So?

Be careful, because there is enough language that GoDaddy could, arguably, use it for other purposes. OK, calm down: Just how risky is it? Well, it’s probably remote.

Facebook

So, I got curious about Facebook. Their TOU is mercifully well written, though such clarity may be ambiguous. Here is the relevant language (editing mine):

For [your] content [. . .], you specifically give us the following permission: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide
license to use any [such] content that you post on or in connection with Facebook (“IP License”).

At first blush, “use any [such] content” would seem very broad. Relief in the next sentence:

This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

Facebook would probably not want to take the risk of using your content in some other use and then discover that your license has ended. Probably no worries there, but what
about use by other users? Another section grants pretty much the same license:

When you publish content or information using the “everyone” setting, it means that you are allowing everyone, including people off of Facebook, to access and
use that information, and to associate it with you (i.e., your name and profile picture).

This right of use does not explicitly end when you delete your content, so arguably, what you put there, others can use. (This is common sense because your content, once used
by someone else, is no longer even under the control of Facebook). Legal eagles will rightfully argue that the parenthetical, together with the “i.e.,” limits it only to your name
and profile. Hmmmm . . .. That may be right, because i.e. stands for the Latin id est, which means “that is.” However, the risky part is that other Facebook users can “use” your content. That’s not defined.

So, UGC ownership pretty much remains with you, at least with these sites, though there is some muddying of the waters as to its use.

Watch this space: YouTube’s TOS will be discussed soon.

Please note that a slightly different version of this post was previously posted on a Global Capital blog.

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James C. Roberts IIIJames C. Roberts III is the Managing Principal of Global Capital Law Group and CEO of the strategic consulting firm, Global Capital Strategic Group. Between the two groups there are offices in California, Colorado, the East Coast, Shanghai and Milan. He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies. Mr. Roberts speaks English and French and, with any luck, Italian in the distant future. He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California Berkeley. Have a question? Email James

This ‘Ask the New Media 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 without seeking the advice of counsel in the relevant jurisdiction. Tubefilter, 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.

(Top photo by Jaymis. )