Before I come back to Monday’s story about voices dot com’s changed Terms of Service, I have a word for my many subscribers.
Until now, I’ve used a service called Feedburner to enable people to subscribe to this blog. Google stopped supporting this service quite some time ago, but it was still operational.
As of today I have retired Feedburner, and replaced it with a simple subscription system provided by Jetpack.
What I did not do is automatically transfer thousands of Feedburner subscribers to the new system. That may not seem such a smart move, because I’d stand to lose many subscribers. However, I feel I cannot just move your private information over from one system to another without your permission. That choice has to be yours, not mine.
If you feel this blog offers enough value, I ask you to please go to the top right-hand part of this page and resubscribe using the new system. You will receive a short email asking you to confirm your choice. Mind you: you can always unsubscribe if my musings are no longer relevant or interesting to you.
I will weep in silence, but eventually I’ll get over it.
LOSING YOUR INTELLECTUAL PROPERTY RIGHTS
With that said, let’s move on to my friends at voices dot com (VDC). Every member past and present has received an email notification saying:
“As part of our regular updates, we’re making a few changes to our Terms of Service to reflect new features, clarify our policies related to file ownership and improve your experience on Voices.com.”
As I reported on Monday (a day before VDC made the announcement) CEO David Ciccarelli had decided that, in order to “improve your experiences on Voices.com,” it would be best to hand complete ownership of your finished work over to VDC.
As soon as your audio has been uploaded, VDC can do with it whatever it wants. Once the client has paid in full, that ownership is transferred to the client.
The following is from the new VDC Terms of Service (TOS):
6. Non-Union Work Product: With respect to non-union voice work produced by Talent for a Client in connection with a Services Agreement or an accepted Job Posting (“Non-Union Work Product”), immediately upon the transfer, transmission, submission or upload of Non-Union Work Product through the Site, or otherwise through a Service, Talent: (i) transfers, assigns and conveys to Voices.com, all right, title and interest (including without limitation copyright) in and to such Non-Union Work Product (including without limitation sound recordings, performances, compositions, musical works and other copyrighted content included therein) that Talent has agreed to provide the Client (via Voices.com) in the applicable Job Posting, Services Agreement or other agreement between Talent and Client; (ii) waives all moral rights (and all other rights of a like nature) that Talent may have in such Non-Union Work Product in favour of the applicable Client (and any third party authorized by the Client to use such Non-Union Work Product); and (iii) agrees to execute any and all such further documents as Voices.com may request to confirm and/or give full effect to Voices.com and/or the applicable Client’s rights hereunder.
Without limiting the generality of the foregoing, Voices.com (including its assignees or licensees) may use Non-Union Work Product in accordance with the applicable Job Posting, Services Agreement or other agreement between Talent and Client without restriction and without any rights of approval by Talent. Upon payment in full by the Client, Voices.com grants to Client all right, title and interest (including without limitation copyright) that Talent has agreed to provide the Client (via Voices.com) in and to the applicable Non-Union Work in the applicable Job Posting, Services Agreement or other agreement between Talent and Client, which for greater certainty will be limited and subject to any purposes, intent, scope and restrictions (including, if applicable, category of use, market size and time period) set out in the applicable Job Posting, Services Agreement or other agreement between Talent and Client. In the event the applicable Services or Job Posting does not specify such limits nor usage restrictions, a full buy-out of the Non-Union Work Product is assigned.
A BIG DEAL
Why is this even an issue? Our colleague Chris Thorn comments:
“If Burt’s Bagel Shop (of course I am making this up) wishes to pay me X number of dollars to voice an advertisement for them, frankly, I’m all for it. I’ve done him a service, he has compensated me, and we both live happily ever after. That I do or do not own the intellectual property rights to that 30 seconds of Emmy quality audio troubles me not. What on earth am I going to do with the property other than sell it to Burt who has already purchased it.
Most of us don’t play with the “big boys”. Here is where we carve out our niche and put food in our belly’s, that I don’t have the intellectual property rights to Burt’s Bagels ad, Sally’s Fine Nails Internet Explainer Video voice over, or Junk City’s benefits presentation audio troubles me very, very little. Signed, An Unconcerned Voice Actor”
First of all, the right to ownership of your intellectual property is in the US Constitution. Apparently, you need a Dutch voice talent to point that out. Just because a third party is paying for your voice over recording, doesn’t mean they own those rights, UNLESS you agree to signing those rights over in a work for hire agreement made prior to you starting the job. That’s how it’s done.
It’s not for a company like VDC to automatically give that right away using a Terms of Service Agreement most members won’t even read.
Secondly, if a company wants exclusivity, THEY PAY FOR IT.
UK Colleague Marcus Hutton explains:
“The level of exposure matters. And in your fee there should always be an exclusivity element built in. Heavy association with one product will naturally take similar products off the table (who wants to use the same voice that a rival uses?). If you go and work for Betty’s Bagel shop then Bert won’t be using you again and bang goes you client relationship.
Even if your job is is officially non exclusively licensed, a rival client would be very peed off if they made the connection. Unofficially, radio stations ( as an example) who do not pay exclusivity fees just won’t use you for a competing product. And how on earth can you negotiate a fee with Bert’s Bagel Shop in the first place if you don’t know what the usage will be ? In Europe that’s now illegal under the new copyright directive. Clients can be fined for providing insufficient information.”
He continues:
“A study by the IP department of a major UK university on voice overs licensing, and unfair practises by P2P platforms is underway, and the first part of their research was published earlier in the year. There is more to come specifically on the legality of P2P licensing and how it varies between the US and Europe and what part the WIPO (World Intellectual Property Organization)can play in making things fairer. Jurisdiction will be a hot topic.”
Click here to access this study. Here’s one of the conclusions:
“In a two-part analysis, this study demonstrates that online peer-to-peer recruitment platforms defeat the framework of intellectual property (copyright and performers’ rights) on a global scale.
The results of the survey show that: online peer-to-peer recruitment platforms are perceived very negatively by voice-over performers; the use of written contracts, summarizing the key aspects of a transaction is extremely rare; and, there is a critical lack of awareness of intellectual property rights within voice-over performers paired with a perceived lack of representation by unions or organizations to defend and advance their rights.”
LEGAL OPINION
As (voice) actor, attorney and the author of Voice Over Legal, Robert Sciglimpaglia said on Monday:
“Talent should think long and hard about waiving their intellectual property rights through a buried term in a terms of service agreement on a website. The end client may ask the talent to sign a work for hire, but it’s an open question for me whether TOS is an enforceable work for hire.”
And by the way, what would you, Chris Thorn, do when VDC uses the explainer video for Sally’s Fine Nails as a national commercial, or uses it for years past what you contracted for? How are you going to stop them from doing that if you have no more ownership of your work?
Unlike you, I did not make these examples up. These are actual cases that were litigated and reported by VDC members. Or how about when they use your work to create an AI database to do who knows how many jobs that you could have done to put food in your belly? It’s no secret that VDC has a partnership with AI company VocaliD.
YOUR INPUT
Ciccarelli explains how this change in TOS came about:
“We listened to your feedback via online forums and our customer advisory group. We consulted industry experts, our board of directors and finally, our legal counsel.”
If you’re a VDC member, were you asked to weigh in on this decision that impacts your livelihood? Did you give VDC feedback, begging them to please take away your intellectual property rights to make the poor clients happy?
Only a fool or an extremely naive beginner would do that.
I have many connections in the voice over world, and as far as I can tell, no voice talent was ever consulted.
Once again, VDC is pulling a fast one, screwing the talent it depends on to make millions.
What else is new?
Voiceoverist extraordinaire Philip Banks has this to say to VDC:
“Dear Dave, Steph and all you lovely Voice Devils Canada. A client, not you, will pay me for the reasonable use of my work. My performance was, is and will remain my property. YOU, dearest Dave, Steph and the lovely Voice Devils Canada take an annual fee from me and an undetermined percentage of my income, MY INCOME, derived from your site. That’s it.
“In order to improve service” as used in your T&Cs is like greasing my wallet in order to improve the service I get from Quentin the local pickpocket.”
Paul Strikwerda ©nethervoice
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Creative people have the same problems: other people steal rights they don’t pay for. I just can’t see how the author benefits.
Traditional publisher contracts have become more and more draconian, claiming and locking up rights in boiler-plate language they claim is non-negotiable. I follow several writer blogs (kriswrites.com and thepassivevoice.com) written by a savvy writer and the lawyer husband of another.
I’ve been reading and studying copyright since 2012 – it’s an on-going problem in all creative fields. It was one of the reasons that confirmed my plan to go indie and publish myself. Immediately before, I registered my copyright with the Library of Congress.
It might be said that you have a single client, where writers have many, but the principle – control of your own intellectual property – is the same.