Art-licensing expert Cheryl Phelps shared with me her concerns about the MySpace.com agreement. She first wrote on the subject in April for theispot. The MySpace agreement has since been changed, but questions remain. The language she is concerned about is highlighted in red with her comments in purple.
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you hereby grant to MySpace.com a limited license to (use, modify, publicly perform, publicly display, reproduce, and distribute) such Content solely on and through the MySpace Services. This is a very broad rights use area and could later prove problematic when and if MySpace is sold again or broadens their reach by merging with another company providing content on an even bigger scale. There is also a part where it says this agreement can change and to check back frequently because the terms will change.
Without this license, MySpace.com would be unable to provide the MySpace Services. For example, without the right to modify Member Content, MySpace.com would not be able to digitally compress music files that Members submit or otherwise format Content to satisfy technical requirements, and without the right to publicly perform Member Content, MySpace.com could not allow Users to listen to music posted by Members. They explain why they need to modify to satisfy technical requirements and publicly perform to cover listening to music when posting on MySpace.com, but if “MySpace Services”, which they say below is “global in reach” merges with another biz providing content over the internet the “reproduce and distribute” of content could be a broader area posters did not anticipate.
The license you grant to MySpace.com is (non-exclusive (meaning you are free to license your Content to anyone else in addition to MySpace.com), true but most companies artists would grant other licenses too usually want some sort of guarantee the image is not out in such a global reach as MySpace for possible infringement.( fully-paid and royalty-free (meaning that MySpace.com is not required to pay you for the use on the MySpace Services of the Content that you post) since they aren’t paying and can use your content “through MySpace Services” you could be allowing your content to be used in their advertising under the broad language above., (sublicensable (so that MySpace.com is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the MySpace Services) “Affiliates and subcontractors, another broad area that could cover companies that put the content out there beyond MySpace.com , and worldwide (because the Internet and the MySpace Services are global in reach). This license will terminate at the time you remove your Content from the MySpace Services. The license does not grant MySpace.com the right to sell your Content, nor does the license grant MySpace.com the right to distribute your Content (outside of the MySpace Services)still fine unless MySpace Services
merges to become a content provider broader than it is now.
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Cheryl continues,
I think I’m a bit hyper-vigilant right now about contracts and such because the “Orphan Works Amendment” HR5439 change to Copyright that is in the Judiciary Committee currently is a red flag that posting our content to web sites such as MySpace.com, (beyond the broad grants of rights), may also bring about problems of putting our work out there to get “orphaned” and possibly infringed on. A case recently where a major tobacco company used an illustrators image claiming it was “orphaned” was won by the illustrator when they could prove from discovery that the illustrators signature and web site info had been removed from their illustration promo they had sent out.
Right now there is a re-examining of the “Orphan Works Issue” before the committee because artists, illustrators, photographers, designers and the textile design industries have all caused some “controversy” that I hope forces some changes to the amendment.
