Feeling the Holiday Spirit? Check With Your Lawyers To See if it is Okay

You may have given away your right to feel the holiday spirit via some click-through license dreamed up by an over-exuberant lawyer. Don't believe me? Anything is possible in the world of contracts; read on...

An in-law sent me a flash animation card from a site called "Elf Yourself" (tm) -- no link love here, guess the URL or find it in Google -- that has some cartoon elves dancing with the images of this in-law's family's faces superimposed on the cartoons. It was cute, and I contemplated sending a reply with the faces of my family. As I typically do, I scanned through the Terms of Use that one must accept before starting and the word "universe" caught my eye. "Self," I said to myself, "why would the word universe be in the Terms of Use?" So went back and read the entire Terms of Use, and the good bit is in "Grant of Rights" (my own emphasis added):

By submitting a photograph or any other materials or information to the Web Site (including, without limitation, your name, picture, likeness, voice or biographical information, vocal messages, text messages or text) (each a "Submission"), you hereby grant to Company, its subsidiaries and affiliated companies and each of their respective licensees, successors and assigns (collectively, the "OfficeMax Entities"), the unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to use, host, cache, store, copy, distribute, display, perform, publish, broadcast, transmit, modify, reformat, translate or otherwise exploit in any manner whatsoever your Submission throughout the universe, in perpetuity [didn't they already say that once] in any manner and venue and for any purpose whatsoever, including, without limitation, for the purposes of advertising, promotion or trade in promoting and publicizing Company and its products and services, by means of any and all media and devices whether now known or hereafter devised, which includes, without limitation, the unlimited right and permission to post the Submission on this Web Site. [In case you weren't keeping track, this is the entire first sentence -- we just reached the first period.] The OfficeMax Entities shall have the right, in their sole discretion, to edit, composite, morph, scan, duplicate, or alter your Submission in any manner for any purpose which the OfficeMax Entities deem necessary or desirable (each, a Modification), and you irrevocably waive any moral rights you may have in your Submission, even if a Modification is not acceptable to you. You agree that you have no right of approval, no claim of compensation, and no claim (including, without limitation, claims based upon invasion of privacy, defamation or right of publicity [I have a right of publicity?]) arising out of any use or Modification of your Submission, including, without limitation, any blurring, alteration, editing, morphing, distortion, illusionary effect, faulty reproduction, fictionalization or use in any composite form.

A right of publicity? This must have been drafted by a lawyer from Hollywood. There are other neat bits, too -- I had to look up the definition of the term "estoppel" (("a bar or impediment preventing a party from asserting a fact or a claim inconsistent with a position that party previously took, either by conduct or words, esp. where a representation has been relied or acted upon by others." -- estoppel. Dictionary.com Unabridged (v 1.1). Retrieved December 22, 2007, from Dictionary.com website: http://dictionary.reference.com/browse/estoppel)) for instance. The irony doesn't end there, either. I had to Photoshop together small screen-shots of the Elf Yourself (tm) Flash applet in order to put together the graphic you see here. The reason for that effort? The text-based Terms of Use on the site does not match the one embedded in the Flash applet! Just think, if one didn't bothered to scroll through the text in the applet, all of this fun would be missed. It seems like the work of an overly excessive legal mind (who else would use the word "estoppel"?). Or, ("without limitation") a committee of overly excessive legal minds.

Needless to say, I found this to be way over the top, so I decided not to send an Elf Yourself reply.

The text was modified to remove a link to http://www.elfyourself.com/termsofuse.php on January 20th, 2011.