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Making Waves: Use of Personal Images by the Vessel at NYC’s Hudson Yards

April 2, 2019

Are you and your family first in line at your hometown stadium on Opening Day? Do you regularly visit museums and attractions? Have you seen your face on the big screen or posted your own pictures on social media? Most likely, your answer is “Of course!” But have you read the fine print that governs what the venue is permitted to do with your name, likeness, image, voice and uploaded photos?

Visitors to the new Hudson Yards attraction in NYC, named the “Vessel,” which opened on March 15, were taken by surprise at the scope of the rights that they gave away by buying tickets and visiting the building.

The fine print of most venues, including Major League Baseball, the NBA, the NHL and Disney, says that once you upload your content (photos, videos or other creative works) to the venue’s own digital media platforms, you are granting the venue unlimited permission to re-post, sell, use and modify your content forever, without any compensation, in any type of media. So simply by uploading your photo or video to your favorite team’s social media site, you – or anyone in your picture, including your child – could become the fan of the year, with your face on billboards on major highways.

The Vessel’s policy is different in two ways:

1. The unlimited permission that you, as a ticket holder, are granting to the Vessel to use your photos, audio and video content for free is triggered by your posting content that “depicts or is related to the Vessel” to any social media account, not just the Vessel’s social media account. This trigger doesn’t require you to actively choose to share your social media with the Vessel, it’s automatic.

By sharing your Vessel photos or videos with your friends on Instagram, you are giving the Vessel the right to “re-post, 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. I understand that I will not be entitled to any compensation from the Company, its affiliates or their respective vendors in connection with the same.”

2. If you visit the Vessel, you may be filmed or recorded. If the Vessel takes your photograph or video or records your voice, it is the owner and has the unlimited right to use it, without compensation, for any purpose, including marketing and advertising. This includes photographs or videos of children as well.

The policy says: “I agree that all photographs, audio recordings, and video footage taken of me while at the Vessel, and any derivative works (“Recordings”), will be the sole property of Company. As the owner of the Recordings, Company has the unconditional, irrevocable right (exercisable by Company or by third parties on Company’s behalf) to reproduce, display and use the Recordings, including for advertising, marketing and promotional purposes, in all media and formats, whether now known or later developed. I further authorize Company to store the Recordings on a database and transfer the Recording to third parties in conjunction with security and marketing procedures undertaken by Company.”

Section 15 of the policy provides that by buying a ticket for a child, the parent or guardian is specifically consenting to the Vessel’s use of photographs, video and audio of guests under the age of 18.

Right now, you may be thinking: is this policy even legally enforceable?

Visitors to websites that are directed to children may be familiar with the Children’s Online Privacy Protection Act (COPPA), which requires websites and online services to post a privacy policy that complies with COPPA and gain “verifiable parental consent” from the parent before the child’s personal information can be collected. Photos, videos or audio files containing a child’s image or voice are included in the definition of personal information. But here’s the first question: is Section 15 sufficient “verifiable parental consent” under COPPA? COPPA permits a parent to consent by using a credit card that is associated with the “information disclosure” transaction provided that the parent is fully informed of all of the COPPA provisions. While the Vessel’s policy doesn’t refer to COPPA at all, anyone who scrolls down the “Privacy Notice” page will see the following Note to Parents and Children:

The Services are not intended for use by children under the age of 13, and we do not knowingly collect personal information from children under the age of 13. If you are the parent or guardian of a child under 13 who has provided her or his information to us, please contact us at privacypolicy@related.com and we will seek to remove that information.

This raises a second question: would Hudson Yards argue that Section 15 waives any right of a ticket holder to request removal of the Recordings of the child, namely the photos, videos or audio files made by the Vessel’s personnel?

COPPA is not the only relevant law; Europe’s GDPR applies to the collection of personal information of European citizens and residents. The Vessel is a tourist attraction, and Europeans are likely visitors. Whether (or not) the Vessel’s policy is GDPR compliant (GDPR isn’t mentioned anywhere), the GDPR explicitly permits a person to withdraw consent – so Hudson Yards would be required to remove Recordings of European visitors if asked to do so.

In New York, when confronted with enforceability of website contracts, the courts ask whether the website reasonably communicated the terms of use to the user and whether a reasonable person would be on notice of the terms. The Vessel’s terms of use don’t require the user to click through and say “Yes” before buying a ticket. This is called a “browsewrap” agreement, and the question becomes whether an enforceable contract has been formed between the Vessel and the ticket holder. Did the user have actual or constructive knowledge of the terms of use? Could the ticket holder use the “Note to Parents and Children” to stop the Vessel from using either the uploaded photos/videos or the ones that the Vessel took itself? Is the fact that the Terms & Conditions button is below the text about the Vessel enough to provide notice?

The outcry over the Vessel’s policy has resulted in New York City Council Member Ben Kallos’s plans to introduce “legislation in the City Council to ensure that when 60 million tourists visit our city their photos, videos and identities are not taken and sold to the highest bidder. You don't own me, you don’t own my identity, and you can't own the photos in my smartphone just because I took them at your tourist attraction.”

In this interconnected world, you have a choice to be public or private, to upload photos, audio or video to your favorite team’s website, and one consequence of that choice is the unlimited license that you are giving the team to use your content. But you have the choice not to upload. The Vessel’s recording policy does not permit a ticket holder to opt-out of being recorded.

Buyer beware is particularly relevant in the social media age. Now that you are knowledgeable about the Vessel’s policy, will you choose to visit?

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