The 15-story outdoor stairway (to nowhere), the “Vessel” at Hudson Yards is the latest architectural marvel to hit the New York City skyline. It’s an Instagram sensation, attracting thousands of local residents and tourists to the site. However, the owner of the Vessel, ERY Vessel LLC (“ERY”), printed on the back of the Vessel tickets that a person’s visit to the Vessel is subject to terms and conditions on a website.
The terms and conditions are over-reaching and visitors should be cautious. As of March 19, 2019, ERY modified its terms and conditions, but they are still Draconian (and actually, at the time of this post, were poorly drafted by their lawyers and has typographical errors which may void certain provisions).
First, the terms and conditions apply to not only those who buy a ticket to climb the stairs, but anyone who “enters the Vessel experience” (whatever that means). What is considered “the experience?” Is it just being in Hudson Yards within eye-sight of the Vessel, or what? (This vagueness can be ripe for litigation).
Second, visitors should be aware that they may be filmed and that ERY may use that footage anyway they want without paying the visitor. Usually, notice and consent to be filmed is posted visibly at the entrance to a site, that way the visitor can give informed consent to being filmed.
Third, and more important, is the scary part. If a visitor posts any “photographs, text, audio recordings or video footage depicting or relating to the Vessel that [the visitor] may create (the “Vessel Media”)” to any social media channel, then ERY and its affiliates have 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 [the visitor’s] name, voice and likeness and any other aspects of [the visitor’s] persona as depicted in the Vessel Media), “in perpetuity.” This means a visitor relinquishes all rights not only to their name and likeness without compensation, but also to any “Vessel Media” they create. (Here’s the bad legal drafting part — ERY lawyers drafted the clause negligently, because ERY rights to exploit visitors’ creative expressions only occur when the visitor posts its “Vessel Content” (which is not a defined term in the agreement — presumably the lawyer confused the word “Content” with the word “Media”). So technically, if “Vessel Content” is not a defined term, then the posting of such never occurs. (I’m sure the law firm will fix this if they read my blog).
Craig Delsack was interviewed earlier in the day on March 19, 2019, by (CBS2 News New York) regarding Vessel’s over-reaching rights grab: