I recently ran across a video created by a YouTube content creator regarding a third-party app that she discovered was displaying, distributing, and monetizing her videos without permission:
According to the video, the content creator, Ancient Whispers ASMR, took initial steps to look into use of a third-party app called Tingles (owned by Tingles, Inc.) that claimed to provide its users with easy access to ASMR videos (a growing and popular category of videos that has built a community of artists and viewers). When first accessing the Tingles app as a creator, Ancient Whispers ASMR was asked to allow her videos from YouTube to be “made available” on the Tingles app. The authorization further included checking a box reading “make my videos available on Tingles.” After proceeding through additional pop-ups allowing Tingles to view her YouTube videos, account, and activity, Ancient Whispers ASMR was presented with an “Artist Partnership Agreement” which detailed the rights Tingles required the artists to grant to partner with it.
Ancient Whispers ASMR claims that she didn’t sign the Artist Partnership Agreement, although she cannot remember specifically why not. She claims that she simply “did not like it.” Without knowing any other details, I’m pretty sure that she didn’t like it because of this paragraph alone:
3. Content Use. It is understood and agreed that the Company has the right to use or not use the original content for any purpose. The Company has the right to use, reproduce, reuse, alter, modify, edit, or change the content as it sees fit and for use exclusively on Tingles platform. Upon Contractor’s request, modified, edited, or changed content will be removed from the Tingles platform.
It is easy for people to glaze over when reading through legal documents like this Artist Partnership Agreement, but I hope that it is obvious why this tiny paragraph should have raised a large red flag for any content creator asked to agree to it. Not only does it use vague language such as “use,” but also expands that undefined use “for any purpose.” The small paragraph then attempts to demand exclusivity of the content. However, most egregious to artists creating videos, photographs, or any other sort of content would be granting the rights for the Company to “alter, modify, edit, or change the content as it sees fit” for the undefined and unlimited “use” in any manner.
I have spoken with enough artists to understand the time, effort, personal cost, blood, sweat, and tears that it takes to create the videos and images that they share with the world. I can’t imagine any of them being okay allowing others to make sweeping changes to that content for some unknown or undefined use. But signing this Tingles contract would allow just that. This is a classic rights-grab where the Tingles is demanding a much larger universe of rights than they would ever need to satisfy their core stated purpose.
This blog post is not meant to speak to the controversy between Ancient Whispers and Tingles. Without knowing more, I cannot know whether those initial click-through agreements alone would allow Tingles to display and distribute works uploaded to YouTube. It is certainly possible, and something that creators must be aware of as they navigate these kinds of click-through interactions. Instead, I wanted to provide a good example of a creator being aware enough about the details of a contract that she was not willing to agree to its terms. I also wanted to highlight how important it is to read and understand the terms of any contracts you are entering, especially when it involves granting any rights to your work. It is up to you to make sure that the licenses you enter are properly tailored by either negotiating better terms or walking away if the other side won’t budge. Failing to do so can be devastating — here a signing YouTuber would give up almost all exclusive control of the creative and managerial control of her library of works (possibly even previously uploaded videos, as the contract as shown in the video does not restrict the specified content to future uploaded videos). If you don’t feel comfortable reading, translating, or negotiating contractual terms, hire an attorney to do it for you. It’s a small price to pay for assuring continued control over your work.
Finally, I wanted this blog post to serve as an illustration of the power of registering your works with the Copyright Office. I have not met many YouTube content creators who routinely protect their work through registration, as they usually assume that the mere creation of the work is sufficient for the protection they need. On a base level, yes, some protection exists. But here, had Ancient Whispers ASMR or any of the other artists timely registered each of their videos through the Copyright Office, Tingles would have faced significantly more liability for any use beyond the terms of the licenses granted from the artists. Being able to access statutory damages for each work and recovery of your legal fees and costs is a strong deterrent against any infringing activity. I have found that kind of pressure, rather than a news-cycle of bad press from a scathing video or payment of a license fee and profits is required to create real change in the companies that push these rights-grabbing contracts on unsuspecting artists.
After all, if people are equipped to identify and fight back against these kinds of contracts, and have the ability to strongly deter companies from exceeding licenses first and apologizing later, the less it will happen on an industry-wide basis. That would be good for everybody.