Can the submission of user-generated content pursuant to an invitation posted on a Web site give rise to implied contractual obligations on behalf of the Web site owner? Although the recent case of Thome v. The Alexander & Louisa Calder Foundation, 2009 NY Slip. Op., 2009 N.Y. App. Civ. LEXIS 8707 (N.Y. App. Div. 1st Dept. Dec. 1, 2009) does not specifically address user-generated content and rather involves the submission of an art work for authentication by an artist’s foundation , the opinion in close enough to be of interest to parties that accept user-generated submissions via a Web site.
The plaintiff, Joel Thome, is the owner of stage sets for a musical production that are recreations of original sets designed by renowned artist Alexander Calder in 1936. The stage sets were destroyed after the original production, but in the 1970’s they were re-created from the original plans at Thome’s expense, in connection with a revival of the musical production for which they were originally created. Thome asserted that Calder reviewed and approved the plans for re-creation of the sets, and that Calder agreed to view and be photographed with them, but he died prior to doing so. When Thome later sought to sell the sets he was unable to effectuate a sale without having them authenticated as Calder’s work.
Thorne sought to have the sets authenticated by The Alexander & Louisa Calder Foundation, a non-profit entity that was created for the purpose of cataloging all of the work produced by Calder. The Foundation received materials from Thome and communicated with him regarding his request for authentication, but, without explanation, the Foundation did not include the sets in its definitive catalog of Calder’s works (the catalogue raisonne). Inclusion in such a catalogue is considered to be a necessity for acceptance of an item as authentic work of an artist.
Thome asserted several claims against the Foundation, including a claim for breach of contract. In his brief on that point, Thome relied in part on the statement of purpose on the Foundation’s Web site, which included the following language: "Owners of works attributed to Alexander Calder are encouraged to submit applications for the catalogue raisonné and to update the Foundation on changes to their collections."**
Thome did not argue that this language gave rise to an obligation on the part of the Foundation to authenticate the sets (although he raised other claims in the litigation that would have had that effect). Rather, he argued that the Foundation had an obligation to respond to his submission of materials within a reasonable period of time.
The Appellate Division upheld the lower court’s rejection of Thome’s argument that the above language gave rise to such a contractual obligation. The formation of either a bilateral or a unilateral contract, the appellate court stated, requires a definite manifestation of mutual assent based upon language that is sufficiently plain and clear to establish the terms of the contract. The language relied upon by Thome did not meet that test, the court concluded, because it was too vague and neither that language nor the form acknowledgment of the submission sent by the Foundation to Thome manifested any intent that the Foundation would be bound by the receipt of a submission. And finally, the court noted, Thome failed to allege that he submitted the materials to the Foundation in response to the invitation on the Web site, and failed even to establish that the Web site existed at the time of his submission.
While the opinion is helpful to parties wishing to disclaim an implied obligation in similar circumstances, parties accepting the submission of user-generated content via a Web site should not rely upon the absence of contractual language or a court’s interpretation of the language that does exist . Rather, a better practice is an affirmative disclaimer of any obligations that could be implied from the submission of such content, including even expressly disclaiming any obligation to acknowledge receipt of such submissions. In addition, to the extent the Web site owner does issue an acknowledgment, that acknowledgment should be carefully worded to avoid any language that would give rise to any further obligations.
**The language on the Foundation’s Web site pertaining to submissions for inclusion in the catalog upon which Thome relied is quoted in the Appellant’s Brief at p. 7.