Friday, January 13, 2023
How to Lose Friends and Alienate People Using Contracts
I often tell my students that contracts are mutually beneficial transactions that make the world a better place. If you really want to have a positive impact on the world, I tell them, become a transactional attorney. But I recently had an experience of how contracts can become a roadblock preventing potentially mutually beneficial transactions.
A stranger reached out to me to invite me to appear on his yet-to-be-launched podcast. I enjoy podcasts, and I have some experience doing interviews on podcasts and other news venues. I followed up and asked for more information, and satisfied with the answers I received, I agreed to a time for a recording in a few days. The podcaster told me that he would send me a contract, which I thought a bit odd, but I did not consider that a red flag. . . until I saw the contract.
The contract gave all rights in the recording to the podcaster with aggressive boilerplate about how my consent was "irrevocable" and how his rights were "unfettered," applicable "throughout the world," and granted "in perpetuity." His rights to "exploit and distribute" my voice and likeness were to be "sole and exclusive." Well that was all a bit much. I mean, I don't see any reason why I would want to exploit or distribute the recording here, there, or anywhere, but the sweeping nature of my contractual consent put me on my guard.
And then there was the kicker: the contract also provided that I "release and discharge" the podcaster from any and all liability arising out of the podcast. Nope.
I told the podcaster that I would not sign the release. I told him I could send him a mark-up that would be acceptable to me, but then he would have to pay me for my time. It wasn't a serious offer. He responded that I didn't have to sign anything. He just wanted to use the material as he saw fit. Not helping. The trust was gone. I felt like I was being set up, and the risk outweighed the reward of appearing on a yet-to-be-launched podcast broadcast by someone I did not know personally or by reputation.
Time will tell. I told the podcaster that I would prefer not to be among his first guests, but that I would listen to the first episodes when they appear and consider appearing as a guest once I have a better sense of what he is up to. It may be that this person is trying to get a new venture started, and he relied on a form agreement that is a bit more zealous in protecting his rights than the situation really calls for. It is unlikely that there will be a movie treatment of his podcast episode featuring his interview of me. But until proven otherwise, I am now open to the possibility that I just narrowly dodged a gotcha interview by someone from the Veritas Project.