29 October 2009

Throughout the universe in perpetuity

Rico says its the latest hip legal phrase, according to an article by Dionne Sarey and James Hagerty in The Wall Street Journal:
Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC's America's Got Talent television show when they noticed peculiar wording in the release papers they were asked to sign. Any of their actions that day last February, the contract said, could be "edited, in all media, throughout the universe, in perpetuity."
She and the other singers, many of whom are librarians in the Washington, D.C., area, briefly contemplated whether they should give away the rights to hurtling their images and voices across the galaxies forever. Then, like thousands of other contestants, they signed their names. Ms. Harrison figured the lawyers for the show were trying to hammer home the point that contestants have no rights to their performances, "but I think they're just lazy and don't want to write a real contract," she says.
Lawyers for years have added language to some contracts that stretches beyond the Earth's atmosphere. But more and more people are encountering such everywhere-and-forever language as entertainment companies tap into amateur talent and try to anticipate every possible future stream of revenue.
Experts in contract drafting say lawyers are trying to ensure that with the proliferation of new outlets— including mobile-phone screens, Twitter, online video sites and the like— they cover all possible venues from which their clients can derive income, even those in outer space. FremantleMedia, one of the producers of NBC's America's Got Talent, declined to comment on its contracts.
The terms of use listed on Starwars.com, where people can post to message boards among other things, tell users that they give up the rights to any content submissions "throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed". Lucasfilm Ltd., Star Wars creator George Lucas's entertainment company that runs the site, said the language is standard in Hollywood. "But, to be honest with you, we have had very few cases of people trying to exploit rights on other planets," says Lynne Hale, a Lucasfilm spokeswoman.
In a 15 May 2008, "expedition agreement" between JWM Productions LLC, a film-production company, and Odyssey Marine Exploration Inc., a shipwreck-exploration outfit, JWM seeks the rights to footage from an Odyssey expedition. The contract covers rights "in any media, whether now known or hereafter devised, or in any form whether now known or hereafter devised, an unlimited number of times throughout the universe and forever, including, but not limited to, interactive television, CD-ROMs, computer services, and the Internet."
Odyssey said the wording was standard entertainment-law contract language. Jason Williams, JWM's president, said he feels a bit strange when his lawyers start using "cosmic language", but it's prudent. "These days there is an enormous amount of concern about how rights get appropriated," he said. "Paranoia is paramount."
The space and time continuum has extended to other realms outside the arts, including pickles. A 189-word sentence in a September agreement between Denver-based Spicy Pickle Franchising Inc. and investment bank Midtown Partners & Co., which has helped raise capital for the sandwich and pickle shops dotted across the region, unconditionally releases Spicy Pickle from all claims "from the beginning of time" until the date of the agreement. "We're trying to figure out how to cover every possible base as quickly as possible," says Marc Geman, chief executive officer of Spicy Pickle. "When you start at the beginning of time, that is pretty clear." As for the wordy language, he says, "the length of the paragraph is only limited by the creativity of the attorney".
Midtown Partners CEO John Clarke didn't realize the wording was in the contract until it was pointed out and said it "probably is a little extreme". Had he drafted the contract, he says he may have suggesting substituting "dating back to the birth date of the oldest party involved".
James O'Toole, politics editor of the Pittsburgh Post-Gazette, recently signed a release form for WQED, a PBS TV station in Pittsburgh, before he appeared on a news talk show. The contract allows the TV station to make use of "any incidents" of his life and reproduce his image or voice "throughout the universe in perpetuity, in any and all media now known or hereinafter devised". Mr. O'Toole, who says he didn't bother to read the release before signing it, took the news calmly. "I'm very popular in some of the far reaches of the Milky Way," he says. Even so, he says, "I don't think I've missed out on a lot of potential income."
Jacquelyn Thomas, general counsel for WQED, says the company has "never gotten any pushback" on this language. "I don't mean to sound like a science-fiction nut, but it's not inconceivable that media will move beyond Earth," Ms. Thomas says.
Members of the Washington-area Bulgarian folk ensemble Slaveya signed a contract before they tried out for America's Got Talent that said their work could be 'edited, in all media, throughout the universe, in perpetuity'.
Some legal experts rail against such language as imprecise and unnecessary. Ken Adams, a Garden City, N.Y., attorney and lecturer at the University of Pennsylvania Law School who advocates for clarity in contract language, says references to outer space and the end of time are silly. That kind of language could even be a way of drumming up business, he says. "It adds an aura of magic; you're dabbling in the occult and you, of course, need a lawyer to guide you through the mysteries."
But Eric Goldman, an associate professor at the Santa Clara University School of Law who specializes in intellectual-property and Internet law, says the language could be "a stroke of brilliant foresight". Referring to geographical limits loosely can be dangerous, he says. For instance, "the United States is an ambiguous term... American Samoa, yes or no?" 'Throughout the world' would be one alternative, but that excludes possible future markets, he says. Some day, Mr. Goldman adds, people might ask, "What were they thinking? Why didn't they get the Mars rights?"
Rico says he will now incorporate this bullshit into all his legal agreements, in perpetuity...

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