Thursday, September 21, 2006

MTV: trust us

MTV haven't had a change of heart since Billy Bragg pointed out their wide-ranging rights granted when people upload their videos to help them fill out time on MTV Flux. Indeed, judging by the Technology Guardian report today, they really don't understand what all the fuss is about:

"I don't think our Ts & Cs are any more strict than anyone else's out there," says Nayeem Syed, vice president of legal for MTV Networks UK & Ireland. When pushed, Syed admits people who upload to MTV Flux forfeit payment and relinquish their rights "in perpetuity". That is, forever. Removing your content doesn't revoke MTV's right to use it.

Which is fairly strict, when you stop to think about it.

But MTV says you don't need to worry about that, because you can trust it:

MTV doesn't plan to be quite so tough as its terms allow. It does identify content creators, and if you leave MTV Flux, you need only give MTV seven days' notice, as content might have been scheduled to air on an MTV TV channel or mobile service.

But while that's slightly better, it still means that MTV will have the right to happily pad out their programming with your content, sell advertising off the back of it, worldwide, and forever, without you ever seeing a penny. More importantly, while it's fine for MTV to say it won't use the full force of its legal rights under these terms and conditions, the rights are still there. So, if MTV is sold to someone else, or suddenly became in some way evil, their vague promises not to use the material or keep perpetual rights won't mean a thing.

"We want to make sure we have the rights we need and we are also trying to future proof them for stuff we don't know about yet, but we are not the bad guys," says Syed.

This isn't about if MTV is currently evil - and just because it's part of a multinational corporation doesn't mean it is, you know - but about the land-grab implicit in their terms and conditions, and what that would mean if they were suddenly replaced by bad guys. It's a rubbish deal, and that's what the problem is, Syed.

His colleague makes matters worse by holding out an even vaguer promise that you shouldn't worry about losing your rights on the videos you upload, as they might make you a star:

"We are trying to raise the bar on UGC, taking our 25 years' experience in television and music TV and tying the UGC clips together with real music videos to make more interesting television," says Angel Gambino, vice president of digital media for MTV Networks UK & Ireland. "We'd like to get to the stage where we can commission content from people and pay them directly." But Gambino is clear that it is MTV's decision when and if the company decides to commission someone to make content. "We won't change our T's & C's, but we could contact those people directly and enter into a separate negotiation with them."

Apart from the vaguely insulting suggestion that videos being uploaded to UGC (user-generated content) sites is pretty shit right now, and lacking the high production values of MTV, is there anything more hollow than this? Dangling the vague chance of some cash at some time in the future, if the clips come up to some undefined standard. But if the content is that poor, why does MTV want to claim all rights to it?

There's another interesting little feature tucked away in those terms and conditions, which is equally worrying:

You must ensure that nothing in your Material infringes any trade mark or copyright or otherwise violates anyone's right of privacy or publicity, or contains anything that is defamatory or offensive.[...] You agree to indemnify and hold MTVNE harmless from any claims, suits, losses (whether foreseeable or not), damages and expenses (including reasonable legal fees) that arise from any breach of these Submission Conditions regarding your Material.

MTV could fairly argue that this is a standard clause for this sort of relationship, but what does it mean? If you make a knockabout video which contains an inadvertent libel, or something offensive, for example, and sent it to Channel 4, they'd have their legal team look at it before they aired it. Presumably MTV would do the same.

But what if their lawyers made a slip or waved it through, or the clip aired by mistake? MTV have a bit of form for airing things by mistake - bungling a caption with the word "fuckers" on MTV Dance during an afternoon in November 2003; slipping up and putting out an unedited Dirty Sanchez on its Polish service while children were watching in April 2004; MTV Dance wobbling (again) and airing a show intended for late-night viewing during an afternoon one May; full-frontal daytime nudity on MTV Hits and a MTV2 "fuck" at 10am in the morning and... well, you get the drift. MTV sometimes makes mistakes and broadcasts things other than it was expecting to be broadcasting. All TV networks, no matter how well run, can sometimes slip.

However, if it does that in the future, with something you've uploaded unders its terms and conditions, it can pass the buck to you - because you've agreed to take the full heat for anything in your video which is "offensive" or libellious.

This is potentially worse than you might think at first - because it doesn't just mean they'll tell the lawyers to sue you instead of them; it means that if they get sued, they can pass the full value of a judgement against them or out-of-court settlement against them, onto you.

What this could mean is that you could mount a full and successful legal defence of an alleged libel in a video you made and MTV showed, even having costs awarded against the person who has sued you, but still end up having to fork out because MTV could have settled separately, out of court; a settlement you have agreed to underwrite.

Sounds far-fetched? The New Statesman was nearly made bankrupt when John Major sued not just the magazine for mentioning Westminster gossip about an alleged affair, but also John Menzies and WH Smiths, the companies which distributed the magazine. Because the distributors had an agreement that the Statesman would cover any costs incurred as a result of content in their title, they were happy to settle with Major, promptly, out of court. And why not? They weren't going to have to pay the money out; they knew the magazine would have to pick up the bill. So, regardless of the rights and wrongs of the magazine's case, the Statesman was lumbered with paying out a huge sum. It's surprising how generously one will settle out-of-court when one doesn't have to write the cheque.

We don't imagine that MTV has drafted these terms and conditions with the intention of leaving some bloke with having to pay a multi-million dollar FCC fine if it uses a clip with his girlfriend's nipple in it on CBS one evening. However, the potential for such a scenario is built-in to what it's asking people to sign-up to when they poke a video into its system.

You might want to think if you want to make a deal where you're never going to see any penny from a video that does well, but could, in extremis, find yourself having to pay out unlimited sums for a video that goes wrong.


Anonymous said...

It's not the idea that MTV may be taken over by evil people in the future that's the worst thing about giving away rights in perpetuity, but the fact that in the future someone else may actually want to pay you for your masterpiece.

What usually happens then is that once the rights have returned to you you can resell it, but no ones gonna touch any film that has already signed it's soul to MTV forever, whether it's under an exclusive deal or not.

Anonymous said...

I was contacted by MTV Flux for some of my content on youtube - I make HD time-lapse films. I offered that they could have it on their own terms in exchange for a cut of the advertising revenues. Didn't hear back...

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