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I was recently offered a non-executive role at a significant global company. My employment agreement contains some questionable language about “publicity rights” and the use of my image. Should I question this clause or just sign the agreement?

Elaine Varelas shares insights and guidance from an experienced business and employment attorney.

Q.  I got a great job offer from a great company and am excited to start. I received the starting HR package and began reviewing the employment agreement which included information on non-competition and a section called “Publicity and Privacy rights”. Why would they need rights “to my name, image, voice, likeness, anywhere in the universe”? I’m not a model or radio personality. I’m a relatively junior employee. The agreement for this part also has no end date, and even says “my heirs can’t contest”. This whole thing seems a little extreme, and when I asked about it, HR said no one ever asks anything about it and it would be an issue if I didn’t sign it. I wanted the job, so I signed, but unhappily. What did I sign away?

A. As I haven’t seen or heard of employment agreements containing “anywhere in the universe”, I consulted Scott Connolly, a business and employment attorney and partner in Verrill Dana, LLP’s Boston office. Connolly explained the “anywhere in the universe” language has been appearing with more frequency in intellectual property agreements replacing the more typical “anywhere in the world” geographic limitation. In some contexts, this language is used to address the fact that IP rights may be used in space or in Earth’s orbit, e.g., the internet may be accessed via satellite connection.

According to Connolly, the Publicity and Privacy Rights Section in this employee’s agreement grants “extraordinarily broad rights to the Employer to use the employee’s name, image, likeness, biographical information, and film and audio recordings for any purpose whatsoever (including non-business purposes), forever, anywhere in the universe, and without any additional compensation. Essentially this provision is unlimited in its grant of rights to the Employer. As drafted, the Employer also can assign its extraordinary rights to any third party without the employee’s consent. Astoundingly, the provision requires the employee to indemnify and defend the Employer from any third-party claims brought against the Employer arising from the Employer’s exercise of rights under the provision. For example, if without the knowledge or consent of the employee, the Employer uses or broadcasts audio/video footage of the employee and the Employer is sued for libel or slander for its publication, the provision purports to make the employee liable for the defense and resolution of such claims.

Connolly explained that the grant or assignment of publicity rights to a business (even broad grants) may be appropriate in certain industries, such as between media and production companies and television and film actors, entertainers, and social media influencers/podcasters. These provisions typically will be negotiated by sophisticated parties represented by counsel familiar with such terms. And the grantor of publicity rights often will have the bargaining power to reign in overbroad releases of rights. For this employee, however, the broad publicity rights provision was part of an employee confidentiality and assignment of inventions agreement provided by an organization to a mid-level employee. Connolly described these circumstances as “unreasonable, overbroad, oppressive, and unfair”. It’s true that mid-level employees may be involved in creating company marketing materials using their voices, images, and likenesses. But the employer’s legitimate interest in the use of such materials can be secured using a much more reasonable and easily understood provision such as:

Use of Voice, Image and Likeness. I give the Company permission to use any and all of my voice, image and likeness, with or without using my name, in connection with the products and/or services of the Company, for the purposes of advertising and promoting such products and/or services and/or the Company.

According to Connolly, this employer may believe such an overbroad provision protects its interests, even if its application really is unnecessary for this employee. But using such oppressive contract provisions can negatively affect recruiting and hiring efforts, and foster fear and suspicion among employees. 

Many employees at all levels ignore language in agreements that suggest they consult with an attorney, or even read these agreements with a critical eye. Good for you for reading the agreement before signing. For those who may be faced with this situation and don’t feel comfortable signing such an agreement, you may want to ask your prospective employer if the language can be modified to be less all-encompassing breath, and perhaps limit the chances that your image could be modified by artificial intelligence.
  Boston.com

By Elaine Varelas