Dealing With Tough Legal Terms
Saturday, September 8th, my lovely wife is going to be competing in the Maryland "Tough Mudder" competition in Frederick, MD. The thought of getting battered, bruised and electrocuted doesn't really appeal to me, but I am a big fan of the cause it supports, The Wounded Warrior Project. Because of my support for that cause, I purchased a $20 ticket to go cheer on my questionably-sane wife and be a spectator. Naturally, because of the type of event and the odds that I may not make it to another event like this, I've got both cameras charged up and ready to go, so I can capture her and her friends in all of their glory (or shame). I'll probably try to observe and shoot a few of the sights and sounds while I'm there, to preserve the memories for her and her friends.
Because I'm still at partial risk at this event (flying debris, or something) I had to sign a 3-page waiver form. Because I'm a thorough fellow, I also read all three pages of this document. It was on the first page, however, that I noticed something odd in this waiver.
"Photography: I understand that as between me and Tough Mudder LLC, any and all photographs, motion pictures, recordings, and/or likenesses of me captured during the TM event by Tough Mudder LLC, its affiliated entities or contractors, and/or the media become the sole property of Tough Mudder LLC. I grant the right, permission and authority to Tough Mudder LLC to use and license others to usemy name and any such photographs, motion pictures, recordings, and/or likenesses (the “Recordings”) in any manner Tough Mudder LLC wishes and in any and all media now known or hereafter discovered or developed, in perpetuity, throughout the universe, including but not limited to promoting, advertising, and marketing activities. I further understand that Tough Mudder LLC, as sole owner, has the full right to sell and/or profit from the commercial use of such Recordings or to transfer or assign the rights to use such Recordings to any entity without restriction. I hereby agree not to sue and irrevocably and unconditionally release, waive and forever discharge Tough Mudder LLC, any commercial television or media company, and their respective past, present and future parents, subsidiaries (whether or not wholly-owned), affiliates, divisions, agents, representatives, employees, successors and assigns, jointly and individually (hereinafter collectively referred to as “Releases”), from any and all manner of liabilities, claims and demands of any kind or nature, whatsoever, in law or equity, whether known or unknown, which I (or my assigns, agents and/or representatives) ever had, now has, or in the future may have against the Releases, including, but not limited to claims arising out of or related to the uses described herein, the TM event, the Recordings, and/or my decision to participate in the TM event. I further agree that I shall be liable for any attorneys’ fees and costs incurred by the Releases in connection with any claim or lawsuit brought in violation of this paragraph. In no event shall I have the right to enjoin the development, production or distribution or exploitation of the Recordings. This release shall be binding on all of my successors-in-interest and heirs."
It was at this point that I strongly considered packing my equipment back up and putting it in the closet, never to come remotely close to this event. I've been down this road before, signing a contract with questionable release practices and legal terms, and it's not an enjoyable time.
As a business, I get where Tough Mudder is coming from and what they're doing. They're protecting their intellectual property, and who can blame them. What's to stop me from use the photos I take to slander their name? Nothing.
But, what's to say I don't grab a fantastic shot of one of the participants that their in-house photographers don't get? What then? According to the way I read their waiver-turned-release form, they have unequivocal right to sell that photo right out from under me. In essence, I've paid them $20, gotten up at the butt-crack of dawn, potentially got soaked (it's to rain that day) all in an effort to allow them to steal my work and potential money.
I'm sure most events have waiver forms like this. You can't go to most concerts or sporting events, take really nice photos, and expect to make money off them. But, why can't you? I get that their are legal reasons behind why you can't, but if I can get a better shot sitting in the stands of an Orioles game, than the on-field photographer, why shouldn't I get the chance to make the same money that he or she is going to make?
I'm still going to go to the event, and I'm still going to take the photos, but I'm a lot more hesitant to post the photos, out of fear that Tough Mudder LLC (the company behind the event) is going to be searching for photos to sell. I'll be anxious to see if I get stopped and/or comments on my professional-grade equipment, because there isn't anything stopping me from taking it into the event. I mean, let's get serious for a second. They're going to be pretty tough on the competitors. No need to be tough on the spectators, as well.