Petty In Pink: Terms of Service Aren’t Always Terms of Certainty

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“The World’s Pinkest Pink” from CultureHustle.

By: Kaitlin Miller

In 2014, a UK-based company, Surrey NanoSystems, developed and announced the invention of Vantablack, otherwise known as the blackest black ever made (until September 2019, when MIT scientists accidentally stumbled upon the new blackest black). Surrey NanoSystems has continued to develop their unique technology. Vantablack is now so dark that it “absorbs 99.96 percent of the incident light that it comes into contact with,” and any 3D object coated in Vantablack looks to the naked eye like a 2D object— “a flat, bottomless void in space.”

A very fascinating issue has arisen from the licensing of Vantablack. Surrey Nanosystems granted British artist Anish Kapoor (known for his work “Cloud Gate,” a popular Chicago sight colloquially referred to as “the Bean”) an exclusive license to the artistic use of Vantablack. This has, expectedly, created an uproar in the art community.

No Pink for Kapoor.

One artist’s outcry is audibly louder than the rest. Stuart Semple, another British artist, retaliated against Kapoor for his exclusive use of Vantablack by creating the self-titled “World’s Pinkest Pink,” and selling it online with the following disclosure on the bottom of the product description:

“By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into that hands of Anish Kapoor.”

By the phrasing of his “Terms of Service,” Semple seemed to protest: if the world can’t use Vantablack, Kapoor can’t use “The World’s Pinkest Pink.” Of course, the story doesn’t end here. Kapoor did, in the end, get a hold of Semple’s Pinkest Pink, and subsequently posted an NSFW  Instagram post. In response, Semple spent months attempting to up the ante and develop additional pigments, including a “blackest black” that would be available for artists everywhere, unless of course their name is Anish Kapoor. In the most recent case, Semple has landed on “Black 3.0” and developed a Kickstarter to fund its mass production, but, predictably, with a caveat:

“Important: By backing this project you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not backing this on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this material will not make its way into the hands of Anish Kapoor.”

Semple has additionally opened his own store and banned Kapoor from entering, going so far as to post a security guard outside the store with a photo of Kapoor. Further, all of Semple’s customers are “required to sign a disclaimer certifying that they are not affiliated with Kapoor or there to buy paint on his behalf.”

Valid Terms of Service, or Performance Art?

Semple’s Terms of Service were admittedly an object of performance art, and perhaps they were not intended to be a valid restriction of sale and use. Semple determined that it was Lisson Gallery, Kapoor’s London representative, that purchased “Pinkest Pink” for Kapoor and therefore is now alleging that Lisson Gallery potentially violated Semple’s Terms of Service. Semple allegedly sent Lisson Gallery a demand letter requesting relief for the breach of his terms. If Lisson did violate Semple’s Terms of Service, then his request of an apology, the return of his product “Pink,” and a Bart Simpson-esque line-writing punishment are certainly less severe than what might be the consequences for the average user who accepts a service provider’s terms without reading them. Other consumers who have accepted Terms of Service have been subjected to mandatory arbitration, have given websites the right to keep, analyze and sell their data, and have waived their rights to bring a class action lawsuit.

Terms of Service agreement, also known as a Terms of Use or Terms and Conditions agreement, is an agreement that sets forth the rules, requirements, restrictions and limitations that a user must agree to in order to use the provider’s service or product. A Terms of Service agreement is not required by law, but many websites and service or product providers use them to set forth their rights in regards to their creation, including the ability to ban users for abusive practices, to limit liability, to require mandatory arbitration in the event of a claim against them, or, as in Semple’s case, to prevent Anish Kapoor from getting his hands on the “Pinkest Pink.”

Though Terms of Service agreements are seemingly only beneficial for providers of products or services, they can also benefit users. Terms of Service can work to clearly explain a user’s rights and obligations in relation to a product, service, or website. However, many people agree to provisions they don’t read, and find themselves unable to negate those provisions.  Although there are instances of cases that have been successful in negating conditions imposed by Terms of Service agreements, those provisions were overturned on other bases, such as a lack of reasonable notice.

Terms of Service Case Law

In a 2015 New York lawsuit concerning a mandatory arbitration provision, the court summarized, “[f]our general types of online consumer contracts exist: (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 394 (E.D.N.Y. 2015). Indeed, four common types of assent are given to Terms and Conditions agreements, or other similar agreements on host websites or applications. First, a browsewrap contract exists where the online host dictates that assent is given merely by using the site. Clickwrap requires users to click “I agree,” but does not require the user to view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button. A sign-in-wrap states that the user assents to the Terms of Service agreement by signing up for use of the site’s services (such as by making an account).

The Berkson court, citing an earlier Second Circuit case, stated that “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms” are required for an internet agreement to “have integrity and credibility.” Generally, courts seem to find clickwrap agreements enforceable because they require users to take concrete action before entering the website. Furthermore, courts generally hold scrollwrap agreements enforceable because the website user likely had a realistic opportunity to review and scroll through the electronic agreement, and as such, the user had a duty to read through the terms before they accepted them. On the other hand, browsewraps are often found unenforceable by courts because no affirmative action is required on behalf of the user. However, browsewrap agreements are not per se unenforceable, and enforcement will depend on whether there was “actual notice” or “constructive notice” of the Terms of Service.

A recent case, Benson v. Double Down Interactive, LLC, negated a mandatory arbitration clause where the users didn’t have actual notice.  The court further determined that the users did not have constructive notice because “a user would have to closely scrutinize Double Down’s page on the Apple App Store in order to find the Terms of Use during the downloading process. There is no reference to them on the opening screen of Double Down’s page; instead, they are buried at the bottom of the page and accessible only after scrolling past multiple screens and images that a user need not view to download the platform.” The Benson court determined that a reasonably prudent user would not have notice of those terms.

Whether Lisson Gallery would be liable for a breach of Semple’s Terms of Service is uncertain. Though this occurred in the U.K., had it occurred in the United States a court may have found that Lisson Gallery had actual or constructive notice of the Terms of Service because they were on the front page of the browsing website. However, the Terms of Service were in fine print accompanied by a small asterisk, and much like in the Benson case, were located well below the “Add to Cart” link which re-routes a user to a new page once they’ve added the product to their cart. Before a reasonably prudent purchaser adds the “Pinkest Pink” to their cart and is re-routed, would they have scrolled down far enough to catch a glimpse of the Terms and Conditions? Probably not. However, with all of the attention that Semple’s Terms of Service garnered in the art world and on social media, it would likely be difficult to argue that Lisson Gallery didn’t have some form of knowledge of Semple’s Terms of Service. As such, to avoid any uncertainty, perhaps Semple should ensure his Terms of Service are more noticeable in the future.

 Though Terms of Service agreements are nothing new, individuals consistently accept these agreements without reading them, which can have disastrous consequences. A 2017 survey of 2,000 people found that over 90% of consumers accept legal Terms of Service agreements without reading them and, when faced with no other choice, were willing to accept potentially detrimental consequences in exchange for access to the service or product. However, the fact that people are accepting Terms of Service agreements without reading them is becoming increasingly important as courts continue to uphold mandatory arbitration provisions in terms of service agreements as valid. Because the validity and enforceability of the different forms of Terms of Service agreements are still somewhat unclear, consumers should ensure that they read the terms that they are agreeing to when they make purchases and use services, lest they have to participate in mandatory arbitration, or worse, write 100 lines on a chalkboard.

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