video rights question

[reubensandwich]

Hello! I decided to take the plunge after thinking about it a while(years lol), I've lost some weight and bought an hd camera and everything, getting ready to register for some sites as a model but after doing some research I am beginning to wonder if there are some I should stay away from.

I was wondering if all the sites will own rights to my content, and if there are any that do not keep rights to the videos I will be making? I don't really care that much about my pics and videos floating around, I cam whore for fun on image boards sometimes, but I would prefer to have some way of dealing with it if someone uploads them to major tube sites or uses me in banner ads and stuff. It seems like MFC does this?

 

[zippypinhead]

I've already spent myself ranting about other rules inconsistencies on camsites for the night, so I'll just go ahead and quote another bit of ranting I've done, which I think answers your question. Standard disclaimer: I'm not a lawyer, and this is just my opinion. It is not legal advice. However, I do regard this as an informed opinion. I've been dealing with talent contracting and IP law for fifteen years as a professional artist, and I know a shitty contract when I see one. Feel free request context or clarification if necessary.

Wait wait wait.

I got curious about what, exactly, the models are agreeing to when they join the site, so I looked up the model agreement (PDF.) I had assumed that MFC was working under some kind of a licensing scheme, since the models are required to bring to the table pretty much all but the hosting. But that's not the case. The model agreement is "For Hire" which means that, according to that contract, everything you produce as a model in association with MFC is their moral and intellectual property. You, the model, forfeit all claims to everything streamed and possibly uploaded to MFC, including your face and your name, forever. More than that, you, the model, assume all the risk associated with piracy or defamation in connection with MFC material.

This is kind of insane. I really am shocked....

...seriously, that contract is balls-out FUCKED.

It is a very standard contract and there is nothing unusual about it. I think many people would be surprised what rights they sign away in employment contracts. They can dictate what you wear, what you say and what you can do when not actually working. The big thing now is binding arbitration, you sign away your right to take your employer to court if they abuse you in some ways.

True.

But I would say there's a difference between standard employment contracts and what MFC is doing. Work for hire in the case of a typical business atmosphere secures rights for work done in the name of the company itself by employees who are only working for that company. However, MFC is not an exclusive employer. In fact, they seem to have absolutely no problem with models simulcasting the same video feed through different cam sites. The problem, here, stems from the fact that each of these companies, through use of contractual language like this, is claiming exclusive rights to that feed. They can't all have exclusive rights to that feed. So, say a model is streaming her room on MFC and LiveJasmin at the same time, that model is committing a breach of contract.

No, standard to the industry or not, this is a predatory contract, meant to cover every inch of the company's ass, should they decide in the future to change their game or should they ever run into trouble where a model is concerned. It might even be quasi-legal. Indeed, the language of that contract is stated in such a way that a great deal if not most of the standard practices employed by models to make money -- activities which are condoned and even actively encouraged by these sites, studios, and even other models -- are actually practices that break the contract. It's shady. It's shysterism. And, really, it isn't even legal language that is in the best interest of the sites. I can think of all sorts of situations where this sort of contract would only backfire due to disputes between separate site owners over their claims to "exclusive" rights to the same material. This is messy stuff.

If this was a scrupulous business model, the contract would be structured in a way that is actually standard for independent content providers, which, unless they're doing work that is fully and exclusively contained to a single website, is really what the models are. The greatest asset that an independent content provider has is the ability to control the rights to her work. Taking out "for hire" and "exclusive" from the agreement would go a long way toward making the agreement legitimate. A nonexclusive license, even one that says, "we can do whatever we want with what you stream and post to this site, but it's your content to stream and post elsewhere," would be far more amenable to the realities of how cam models actually work.

 

[HiGirlsRHot]

I agree with Zippy what is unusual about MFC is that for all intensive that treat you as independent contractor, except for you are treated as providing work for hire with respect MFC owning any performance you make on their website.

You play copyrighted music on MFC, without paying a performance royalty. Not only can the RIAA sue you for copyright infringement, but if RIAA sues MFC, you agree to pay MFCs legal cost and any damages that MFC owes .

You allow an underage model cam, or even allow a underage kid to watch your show. It isn't MFC fault it is your responsibility to police this behavior and pay any damages.

But MFC is free do anything that want with anything you do on MFC forever. On the other hand if you want to sell a recording of a show you did on MFC, nope that is not allowed.

Fortunately, MFC seems to give a shit about enforcing any rules at least today. However, in my experience once a company losses a big lawsuit because they weren't good about follow the rules, a new legal team comes in and the world changes.

 

[reubensandwich]

I've looked through the terms of a bunch of different sites and they all seem to do this except adultwork. :/

Whatever, the internet is a sea of ass and I'm just one more...

 

[AllisonWilder]

Every site that you stream from owns your live feed, but if you're talking about private content you make while not streaming on a camsite, then you own the rights to it.

 

[HiGirlsRHot]

Every site that you stream from owns your live feed, but if you're talking about private content you make while not streaming on a camsite, then you own the rights to it.

Not all of them. For instance this Streamate model release (don't know if it is current).

agree to give Streamates a perpetual license to use any content that I produce and submit to Streamates and its
computer systems in the marketing, advertising, promotions or sales of any products or services of Streamates,
affiliates or agents on the Internet.

Lets Streammate use your performance however they want, but you still retain the copyright.

Now on a practical level how much difference this makes is an open question, but legally it is far less restrictive.

 

[zippypinhead]

Every site that you stream from owns your live feed, but if you're talking about private content you make while not streaming on a camsite, then you own the rights to it.

I've already pointed out that their claims of exclusive ownership over the feed is problematic on several levels, but also, according to the wording of the agreement, it could well be that anything you post as a model is something they claim as well. Here's what it says:

I agree to be filmed/videotaped and or photographed in connection with MFC subsidiaries, successors, licensees, and assignees may copyright, use and reuse, publish, distribute, edit, excerpt, exhibit and otherwise exploit my name (real or fictional), likeness, persona, performance, voice, pictures, chat, video, audio, biological information and identification, and statements, (collectively my “appearance”) for any and all uses, in whole or in part, in any and all media and manners now known or learned, for use throughout the universe, in perpetuity, without limitation, including in connection with the advertising, exploitation and publicizing of MFC and its affiliates MFC shall own, and I grant and assign to MFC all rights, title and interest, of every kind and character in perpetuity throughout the universe in and to MFC the results, content, and proceeds of my appearance(s) (including all such appearances made to date) videos, audio, chat, dialogue, acts, and dances, all of which are works made for hire specially commissioned as part of an audiovisual work, including all copyrights, renewals and extensions of copyright and MFC shall be deemed the author thereof for all purposes. MFC may edit my appearance as they see fit (and I waive any and all moral rights that I have), and I understand that MFC has no obligation to use my appearance(s).

There's a vagueness to the wording of this that implies that anything you do that gets uploaded or distributed through MFC, or in any other way connected to them by name, they will claim as their property because it is all part of your "appearance". The real sticking point, here is the use of the terms "exclusive" and "works made for hire" within the contract. I've already explained what those are, so I won't harp on it, but I will make a comparison with something like the ToS of Facebook, for example, since MFC likes to make itself look like a sort of "social networking" site, with a twist. If you were to look through the ToS of Facebook, and get to the licensing part, what you get is this:

you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

It's the standard "we're gonna display your content, and that's what will generate revenue for us, but you own it, we just want to use it nonexclusively" clause present on pretty much every internet website that hosts member-generated content. In fact, the member ToS for MFC says pretty much the exact same thing:

By posting Content on this website, you automatically grant, and represent and warrant that you have the right to grant, to MFC and visitors of MFC, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, perform, display, and distribute such information, rights of publicity and Content and to prepare derivative works of, or incorporate into other works and other media, such information and Content, and to grant and authorize sublicenses of the foregoing.

So, as a member, I don't have to worry about retaining rights to the drawings I post to my profile. I don't have to worry about retaining rights to the things I say on the site. The content that I, as a member, generate, is mine. I am allowing the site to use the content nonexclusively. So, you have a far greater assurance that you will keep what you post as a member than you do as a model. They're pretty clever about making sure there isn't an overlap, wherein a member might post material on a model's behalf, by prohibiting the posting of sexy stuff to profiles by members.

If you look farther into the members' ToS, you'll find MFC's own IP claims:

You acknowledge and agree that all content and materials available on this website are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and by other laws and that their use is restricted by the terms of this Agreement. MFC, the MFC website, and the MFC product and service names are trademarks and/or service marks of MFC (the "MFC Marks") and are owned exclusively by MFC.

Notice that it says ALL content and material. That is the stuff that models provide, and they are not being exclusionary in what they mean. They are not saying "just the cam feeds." They are saying EVERYTHING on the site. I know that my stuff is protected because of the nonexclusive license described above, but models are not afforded the same consideration, since they signed a contract that says everything they do that is associated with MFC is made "for hire" and the rights are exclusively MFC's. Put the two together, and I take that to mean anything a model posts, types, or streams, including material she makes while off-cam, is then claimed as property of MFC. I take it to mean that because they keep using the word "all" in their legal language, which means they aren't being discerning in what they are claiming. These vagaries are by design. They want to lock down every bit of model-generated content that they can.

agree to give Streamates a perpetual license to use any content that I produce and submit to Streamates and its
computer systems in the marketing, advertising, promotions or sales of any products or services of Streamates,
affiliates or agents on the Internet.

Lets Streammate use your performance however they want, but you still retain the copyright.

Now on a practical level how much difference this makes is an open question, but legally it is far less restrictive.

That doesn't seem to be the case anymore:

Performer understands that he/she will upload content/images to Streamates' system for re-broadcast. All content/images uploaded to the system shall become the exclusive property of Streamates, and Streamates will have the sole discretion to use all such content/image in any way it deems necessary, and in any medium, in all sales and marketing efforts, during the Term of this Agreement and upon termination.

 

[HiGirlsRHot]

That doesn't seem to be the case anymore:

Performer understands that he/she will upload content/images to Streamates' system for re-broadcast. All content/images uploaded to the system shall become the exclusive property of Streamates, and Streamates will have the sole discretion to use all such content/image in any way it deems necessary, and in any medium, in all sales and marketing efforts, during the Term of this Agreement and upon termination.

The thing is "exclusive property" is somewhat ambiguous. A reasonable lawyer could argue that since there is no language in the agreement about transferring copyright ownership to Streamate the model still retains it. In general the courts have ruled that in these click to agree contracts, when there is dispute between the contract writers (i.e. the business) and the other party, grey areas are typically adjudicated in favor of the consumer. But there is no ambiguity in the MFC agreement, they own the copyright.

 

[zippypinhead]

I suspect that all of these agreements where models are expected to sign away their rights could be easily ripped apart by a competent lawyer. These sites are writing their agreements in a way that relies upon a model's ignorance of the law and a lack of access to someone in the know.