The massive $150 million staircase-to-nowhere currently known as the Vessel (the name may change), the attention-grabbing centerpiece of the recently-open luxury mall Hudson Yards, was designed to attract millions of visitors a year and inspire an infinite number of selfies. But as we reported yesterday, it's no coincidence that they want people to take tons of Instagram photos there—simply by visiting the Vessel, you are granting the Vessel the rights to use all of your Vessel content.
In the Hudson Yards Terms & Conditions (but as far as we could tell, there's no signage at the Vessel itself), there are two notable and exceptional clauses which state that by creating, posting or uploading any content depicting or related to Vessel, they have the right and license to use your content however they see fit in perpetuity. Likewise, if you merely appear in a photo with the Vessel, they also have the right to use your name, likeness, voice, and all the rest for any commercial purpose they see fit in perpetuity.
Mickey H. Osterreicher, General Counsel for the National Press Photographers Association (NPPA), told Gothamist that these sorts of photo rights grabs are becoming more and more common in the social media age, and put the onus on individuals to go after them to dispute terms they unknowingly agreed to by taking a photo there. "Pretty much the only thing they didn't ask for was the copyright to the material. But you're pretty much granting them an extremely broad license, and it's unfortunate but we're seeing these kinds of overreaching rights grabs come up all the time," he said.
In response to our report on Monday, a representative for Vessel told Gothamist, "The intent of the policy is to allow Hudson Yards to amplify and re-share photos already shared on individual social channels through our website and social channels. 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." It's unclear what they meant by "refining" the language.
"If all they want to do is re-share social media posts, that is all they needed to request rather than the laundry-list grant of rights that are now there," Osterreicher said after hearing their response. Which brings up the question: if they want to be transparent and "over communicate," why would they bury this information in a part of their website that most people would never even think to visit, let alone carefully read? Why not put signs up (in multiple languages) at the actual site spelling all this out?
Someone who agrees strongly with that point is civil rights attorney Norman Siegel, former executive director of the New York Civil Liberties Union (NYCLU). "It's troubling because this begins to be part of the dynamic of private companies using public property, or in this case, getting huge tax benefits, and coming up with terms and conditions that, as they acknowledge, restrict the legal rights of New Yorkers, and other residents from around the country and the world," he told Gothamist. He pointed to a growing trend of companies creating terms that induce people into consenting to the use of their image without their conscious consent.
That isn't the only alarming part of their terms & conditions though—he also brought up the "Assumption of Risk" clause, which states: "DESPITE THE RISKS AND DANGERS INHERENT IN VISITING THE VESSEL, I AGREE TO ASSUME ANY AND ALL RISKS CONNECTED WITH THE VESSEL, including without limitation, personal injury, illness, death, property damage or loss, EVEN IF ARISING FROM THE NEGLIGENCE OF ANY released parties NAMED BELOW OR OTHERS."
Siegel says with that section, "you're giving up your rights for anything that happens on the Vessel. Well, if they constructed it on a negligent manner, or they didn't maintain it properly, and something happens not because of your fault, but because of the conditions on the Vessel, even though they have a provision in here, it says you don't have any rights. I'm not sure that's enforceable."
(Scott Lynch / Gothamist)
The matter of whether any of these overreaching terms are actually enforceable is the big question then. He compared the situation to what's been going at Madison Square Garden recently with owner James Dolan banning people who heckle him or wear anti-Dolan shirts. "When you go into the Garden and you get a ticket, on the back in very small print is the terms and conditions," he explained. "And there is a sentence in there that says that the Garden reserves the right to not allow you to enter, or to eject you for any reason. Well, they can take that position, but it's not enforceable. For example, if they said, 'We're not allowing you in because you're black, or you're Jewish, or you're gay.' It's a public accommodation. Similarly, the Vessel is a public accommodation. There are certain statutory limitations that not only governments, but the private companies have to adhere to."
But what he's most worried about is whether this is the "beginning of a trend where private companies decide, even when they're getting huge tax benefits, the tax payers are subsidizing them, are they going to insist on the public giving up certain legal rights that a lot of us have taken for granted? And if so, this is a troubling trend that perhaps the city council should have a hearing on."
So what's the solution to this? At a minimum, Siegel thinks there should be a "transparency obligation" to put up physical signage informing people of these terms and conditions. "It's one thing if the mom-and-pop store on Broadway and 34th is operating and they have certain conditions about who can come to the store or restaurant and how to behave. But these are not mom-and-pop stores. These are major companies, corporations, LLCs very often, and they're getting tax benefits, subsidies and exemptions. And it seems to me that if you're going to allow these kinds of tax exemptions and benefits, there should be some public obligation and public limits on restricting people's rights."
"And if we have at least two places, the Garden and now the Vessel, that seems to say to people that your rights are limited—and in their terms and conditions, they're boldly saying that explicitly—you should be aware that you just gave up some of your rights... When private companies are doing it, the public needs to be aware. And then they have to say, 'Do you approve of this?' And if they don't, they've got to let their public officials know that if you're going to give any public tax benefits to these companies, put some limitations on how they deny us of our rights."
Siegel noted that he was pleased to hear of the Vessel's initial response to our story about refining the language in the terms & conditions, but added, "Perhaps, they should also rethink the limitations they are placing on the public." And as for their claim that this is a practice utilized at many major attractions, he added, "even if it is correct, it is still troubling."
