Honda Offered Me $0 in Exchange for My Entire Social Media Presence
Last week, I got a strange tweet from @Honda:
@rebeccawatson We'd like 2 ask u a quick question! Can u follow us so we can DM you? Thanks! :)
— Honda (@Honda) April 25, 2014
I knew there was a chance they’d been hacked or something, but I’m a curious person. I followed them, and shortly got this DM:
We’d like 2 use 1 of ur tweets 4 a TV commercial. R u OK with us using this tweet? https://t.co/9JtgAdwhEj
The Tweet in question:
I had to go to the doctor today because my body broke down. My car, deeply sympathetic, decided to do the same.
— RebeccaWatson (@rebeccawatson) July 11, 2013
I’m not one for advertising for large companies pro bono, but my Tweet doesn’t mention Honda, so its use wouldn’t necessarily look like an endorsement. Plus, I thought it would be funny to have a Tweet in a Honda commercial. So, I responded:
Would it include my @ username?
Honda responded:
Hi Rebecca, it would probably do so yes.
And then:
If you are okay with this, can you please fill out this digital signature form for us? Thanks! #HondaLove
Here’s the form they linked to:
The first two paragraphs read:
For good and valuable consideration, receipt of which is hereby acknowledged, I, the undersigned individual, grant Rubin Postaer and Associates (“Agency”), on behalf of its client American Honda Motor Co., Inc., (“Client”) and any authorized party acting on their behalf full permission irrevocably and in perpetuity without any claim or demand whatsoever to use my name, likeness, social media usernames, and/or handles, and to use, edit and adapt statements attributed to me, (collectively, “Likeness”) or any one or more of them, either in whole or in part, in any and all media now known or hereinafter invented for advertising/promotional purposes in connection with the advertising/promotion of Client, its partners and their products/services (“Advertising”).
I further agree to grant Agency and Client and any authorized party acting on their behalf a perpetual, worldwide, irrevocable, sub-licensable, right and license to reference and otherwise use, copy, reproduce, edit, broadcast, and publicly display my social media profile photos (“Photo”) in whole or in part and any variation thereof, in any and all media now known or hereinafter invented for advertising/promotional/marketing purposes in connection with.
In other words, signing that would allow Honda (and their ad agency) to advertise their cars using my real name, username, headshot, and any words or photos I’ve ever posted on Twitter, Facebook, blogs, magazine articles, e-mails to my mom, laser etchings on the moon, and any other place from now until the end of time. Also, they’re allowed to change what I wrote to something they like better. So, for instance, if I once posted a Tweet reading, “I love bananas,” they could change that to “I love Honda cars” and put it in a television ad next to my name and a photo of me giving a thumbs up.
According to the third paragraph of the agreement, I would not be able to sue them for doing that.*
And in exchange for this, I would get a grand sum of no dollars.
I responded:
Wow, that contract is crazy! Sorry, the first paragraph alone would make anyone absolutely insane to sign that.
and
I’m happy to grant you permission to use that one specific tweet with attribution to my username, but that’s it.
Strangely, I haven’t heard back. And sadly, I bet that’s because plenty of other people signed the contract without a second thought.
Gross, Honda.
*I am not a lawyer. Maybe this contract is so stupid that I could sue them for that, but I have no money so the point is moot, anyway.
You have laser etching on the moon? Does it say “Reb”?
Yet more evidence that “sleazy lawyer” is actually an oxymoron. (My apologies to all the decent lawyers out there.)
“Sleazy Lawyer” would be redundant, “ethical lawyer” would be the oxymoron.
D’oh! :) I knew that … :)
I used to be a lawyer and in my experience it was the clients and not the lawyers that make things sleazy. Lawyers are held to very strict ethical rules, and one of them is to zealously defend their clients, meaning that as long as what their client wants is legal, they must pursue that outcome, even if it’s not the nicest or most reasonable outcome. They can give their opinion, but in the end must pursue their client’s wishes or try to withdraw, which is not always that easy. As for this contract, there is a reason for all of they language that makes sense in the context it was intended to be used. The problem is that large companies tend to use the same contract for a wide variety of situations and use boilerplate language that covers everything. If a lawyer had drafted a specific contract for this one situation, it would look very different. But since their employer has asked for one contract to govern all social media relationships, no matter their scope, they are forced to put in language to cover every possible situation. In a best case scenario, both parties to a contract would have their own lawyers and would negotiate terms. This is rarely the case right now and contract law hasn’t caught up with the fact that most contracts aren’t truly negotiated.
Not only does paragraph 3 require you to waive all rights to sue Honda and their ad agency, but it requires you to agree to defend them (or pay for their defence) of any claim by others against Honda or the agency based at all on what they used from you for free. I honestly can’t say I don’t admire their chutzpah. I could make a decent case for moon writing not being technically social media, though.
Quite a gross contract indeed. But I don’t see any language waiving your right to sue. The 3rd paragraph is pretty standard. It is a release from liability arising from doing what a signor has given them permission to do (it’s redundant, really). The third party “hold harmless” clause is also standard; they don’t want to be liable if they signor already granted likeness rights to someone else, for example.
There is a big difference between a “right to sue” and a release from liability; they are not the same thing. Usually, when media talks about a “right to sue” they refer to mandatory arbitration, where the dispute is litigated before a private arbitration panel rather than in court. There is no such clause in this contract. In fact, paragraph 5 preserves access to courts (but only those in LA County).
It is still a rotten contract. What scares me is that Google’s terms of use contains similar language.
That agency’s motto is apparently “We champion Whitespace.” Everywhere except in contracts, I guess.
Maybe it should be “We champion Whitesnake”.
*Hear I go again on my own…
If you think about Olivia’s thread http://skepchick.org/2014/04/consent-and-neurodivergence/ – this kind of gives a whole new meaning to the terms “agency” and “consent”! Yet in both cases, somebody gets screwed.
Seriously though, at least Honda had the decency to ask. Every time we click on a EULA, we sign our life away without even being able to comprehend the terms of the agreement.
Or even if we do understand the EULA, we go ahead and click “I Agree” anyway because we want whatever is on offer more than we want the ability to control our privacy or to join a class action.
Imagine though that you had signed it and for the next few years Honda’s marketing took on a surreally whimsical, skeptical, feminist edge due to them using NOTHING but your tweets, blogs, emails, lunar-etchings etc.
Or Rebecca could lawyer up and make a counter offer to Honda to achieve just that and become a sponsor on her terms!
Maybe someone in their ad agency is planning an online vendetta against you and so tried to trick you into “consenting” to it first.
The scary fact is that apparently this is a bog standard boiler plate contract as I’ve heard other people get similar worded contracts before.
Would be PISSED if they rewrote “I love Bananas” to “I love god and Honda”. *shudders*
Rebecca, I would like to make you an INFINITELY (percent) superior offer. I have a shiny new penny which I will mail to you at no cost to you, in exchange for all of the above rights!
But wait there’s more! I will even allow you to retain rights to your laser etchings on the moon!
Act now!
“For good and valuable consideration, receipt of which is hereby acknowledged” – bullshit. If the consideration is zero, the contract is null and void.