Hudson Yards Updates Vessel’s Controversial Photo Policy; What Changed?
In March 2019, the Vessel, a building/sculpture/web of staircases/“giant shawarma”1 located in Manhattan’s Hudson Yards, the largest mix-use private real estate project in American history,2 opened to the public via free, timed-entry tickets.3 Almost immediately following the opening, the attraction, that sent New Yorkers on Instagram into a photo-taking and posting frenzy, came under scrutiny for its photo policy.4 To put it bluntly, the Vessel’s photo policy compels all ticketed guests to grant Hudson Yards the perpetual, royalty-free right to use in any manner any photos taken on the Vessel’s premises and subsequently shared publicly, including those photos in which the guests’ names and likenesses appear.5 The photo policy, unsurprisingly, has prompted debates about the copyright ownership of the photos, the guests’ right of privacy and publicity, and Hudson Yards’ First Amendment right.6 Hudson Yards was quick to recognize the unfavorable publicity as a result of the controversial photo policy, offering the following explanation and revealing its next step: “This is a practice utilized at nearly all major attractions and we wanted to over communicate, be transparent and disclose to all users. We are refining the language to be more clear.”7 The photo policy has since been amended, and this article will briefly compare the two versions to determine what changed and, more importantly, whether it is “more clear” as intended.8
First, the new version conspicuously merged the two sections concerning photo rights from the old version, i.e. MY NAME AND LIKENESS and MY CONTENT,9 into one single section – MY SOCIAL MEDIA POSTS.10 While the reason for the merge is unclear, much of the content from the two sections in the original policy also appears in the single-section new policy.11 Second, the new version clarifies at the outset that guests who post photos of the Vessel still own the copyright to the photos.12 In fact, under Federal Copyright Law, copyright protection for architectural works does not extend to the right to own all photos of the works “if the building in which the work is embodied is located in or ordinarily visible from a public place.”13 Here, the Vessel is clearly located in and is ordinarily visible from a public place. Consequently, the first sentence of the new photo policy does not necessarily create any right for guests but merely helps Hudson Yards avoid violating Federal Copyright Law. In effect, the sentence clarifies that Hudson Yards does not claim ownership to the photos (which it cannot do anyway); rather, it compels guests to license the rights embodied in the photos’ copyright protection to Hudson Yards. Such drafting avoids the “land-grabbing” of unlawfully claiming ownership to the photos of the Vessel, but is sufficient enough to allow Hudson Yards to use the photos in any manner as it sees fit. Finally, the new photo policy has omitted language that prohibits guests’ use of photos taken on the Vessel’s premises for commercial purposes.14 Notwithstanding the omission, it is clearly stated in the Frequently Asked Questions section of Hudson Yards’ official website that “photographs cannot be . . . commercially exploited whatsoever.”15 Accordingly, the omission of the statement from the photo policy does not necessarily create any room for dispute regarding commercial use of photos taken on the Vessel’s premises.
After all, it seems as though no substantive change has resulted from the amendments to the Vessel’s photo policy nor is the new version’s language any clearer (or, for that matter, less clear) than that of the original version. Guests who enter the premises are still compelled to grant Hudson Yards unlimited right to use any photos they take and subsequently make public online or elsewhere; moreover, they also grant Hudson Yards unlimited right to use photos including their names and likenesses. The moral of the story? Do not post any photos take on the Vessel’s premises online if they are not intended to appear on Hudson Yards’ brochures and websites promoting the Vessel.
New Hudson Yards climbable art sculpture compared to street meat, Page Six (Mar. 18, 2019), https://pagesix.com/2019/03/18/new-hudson-yards-climbable-art-sculpture-compared-to-street-meat/. [https://perma.cc/AV72-2548]↩
Nick Mafi, The Vessel in Hudson Yards Has Finally Opened to the Public, Architectural Digest (Mar. 15, 2019), https://www.architecturaldigest.com/story/vessel-hudson-yards-opens-public. [https://perma.cc/5EG6-D6J7]↩
James Tarmy, After Public Outcry, a Re-Written Photo Policy for Hudson Yards ‘Vessel’, Bloomberg Law (Mar. 18, 2019), https://www.bloomberglaw.com/product/blaw/document/X9O0EHJO000000?bna_news_filter=ip-law&jcsearch=BNA%252000000169925adcb7abffb2fec0aa0000#jcite.↩
Yakas, supra note 4.↩
Vessel Terms and Conditions and Release and Waiver of Liability, Hudson Yards New York (Mar. 19, 2019), https://www.hudsonyardsnewyork.com/discover/vessel/terms-conditions. [https://perma.cc/U7GK-YZMS] (“MY SOCIAL MEDIA POSTS. As between me and Company, I retain ownership of any photographs, text, audio recordings or video footage depicting or relating to the Vessel that I may create (the “Vessel Media”), unless otherwise agreed by me and Company. If I post any Vessel Content to any social media channel, I hereby grant to Company and its affiliates the right to re-post, share, publish, promote and distribute the Vessel Media via such social media channel and via websites associated with the Vessel or Hudson Yards (including my name, voice and likeness and any other aspects of my persona as depicted in the Vessel Media), in perpetuity. I understand that I will not be entitled to any compensation from the Company, its affiliates or their respective vendors in connection with the same.”)↩
Supra note 10 (“As between me and Company, I retain ownership of any photographs, text, audio recordings or video footage depicting or relating to the Vessel that I may create . . .”).↩
17 U.S.C. § 120(a) (2012).↩
Yakas, supra note 4 (“I will not exploit any photographs, audio recordings, or video footage of the Vessel for any commercial purpose without Company’s prior written consent.”). Cf. supra note 10.↩
Frequently Asked Questions, Hudson Yards New York (Last visited Apr. 5, 2019), https://www.hudsonyardsnewyork.com/discover/vessel/faq. [https://perma.cc/59MM-LPM7]↩