Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC’s "America’s Got Talent" TV show when they noticed peculiar wording in the release papers they were asked to sign.
Any of their actions that day last February, the contract said, could be "edited, in all media, throughout the universe, in perpetuity."
She and the other singers, many of whom are librarians in the Washington, D.C., area, briefly contemplated whether they should give away the rights to hurtling their images and voices across the galaxies forever. Then, like thousands of other contestants, they signed their names.
Lucasfilm Ltd., Star Wars creator George Lucas’s entertainment company that runs the site, said the language is standard in Hollywood.
"But, to be honest with you, we have had very few cases of people trying to exploit rights on other planets," says Lynne Hale, a Lucasfilm spokeswoman.
In a May 15, 2008, "expedition agreement" between JWM Productions LLC, a film-production company, and Odyssey Marine Exploration Inc., a shipwreck-exploration outfit, JWM seeks the rights to footage from an Odyssey expedition. The contract covers rights "in any media, whether now known or hereafter devised, or in any form whether now known or hereafter devised, an unlimited number of times throughout the universe and forever, including, but not limited to, interactive television, CD-ROMs, computer services and the Internet."
It reminds me of a draft settlement I received not too long ago that, notwithstanding the statute of limitations, required my client release all claims "from the beginning of the world until the present." Just for fun, I negotiated that down to "from the dawn of mankind."
Ken Adams, the blogosphere expert on contract language (and who is interviewed in the article), blogged about the same problem nearly three years ago, and updated his post today to note:
The phrase occurs most often in contracts in which a consultant or employee assigns to a company all rights to any intellectual property the consultant or employee develops in the course of providing services under the contract. An example: "Employee hereby irrevocably assigns, licenses and grants to Company, throughout the universe, in perpetuity, all rights, if any, of Employee to …." In that context, saying "all rights" is entirely comprehensive; adding "throughout the universe" constitutes needless elaboration.
Indeed, making your contract apply to "all rights … throughout the universe" could be worse than applying to "all rights," because it redefines an unambiguous word and makes it more likely that other ambiguous parts of the contract will be interpreted against whoever inserted the "throughout the universe" language.
"All" means "all." "All rights… throughout the universe" means "all" with a caveat. When faced with unambiguous contract terms (e.g., "all") that are specifically defined by the parties (e.g., "throughout the universe"), a court will ask itself, why did someone try to further specify the unambiguous term?
The court will then presume there must have been some reason for the additional language and try to figure that reason out. The danger of needless elaboration like "throughout the universe" is that the court will view additional language as narrowing the unambiguous terms, which is usually not what the party demanding the additional language wanted.
Moreover, the court will presume that, if one party keeps adding language to "clarify" the meaning of general words (such as "all"), then any ambiguity in the contract should be interpreted against that party, because that party was the one with the most control over the contract’s language.
In the contexts above, those distinctions are probably irrelevant. But, as Adams notes, "it’s symptomatic of the broader dysfunction in contract language." It’s also a bad habit: once you become comfortable with this type of ridiculous language redefining the word "all," how do you know if the ambiguity will stop there?