(Update 7/7/11: After posting a link to this old 2009 post I realized that not all of the original links are still live. Rather than start modifying the following post, I will leave it as it was written, even though access to the original posted source material may no longer be possible. Aside from the specific contest – which is long since over – and any individual involved in it, the general lesson is that it is critical to read contest terms carefully before you decide to enter.)
(Update: I just receive a, uh, “personal” email from the contest promoter. I won’t share the content of that message here at this point, but I did write what I think was a very civilized email in reply, I offered “Scott” the opportunity to post a response here as a comment, and I offered to correct any “false statements” in my post.)
(Update #2: “Jeff” says that that I was apparently incorrect about the lack of contest terms assigning legal liability to entrants: See these terms. This longer “terms” page also includes names of “vendor sponsors” who also have acquired rights to use submitted work.)
I’ve recently posted a few times on what I and others refer to as intellectual property rights grabs masquerading as photography contests. (For example, see this post describing unethical terms in contests presented by the Sierra Club and by Costco.) The short story is that entrants (not just winners!) in these contests agree to provide to the contest organizers and typically a whole range of their associates) a cost-free, unlimited, perpetual license to use their entered photographs in essentially any way imaginable (and some contest specify that even currently unimaginable methods are included!) without any compensation, credit, or control – and many additionally assign to the entrant full legal and financial liability for the use of the photograph.
Just because one enters the contest. That’s right. If you enter and lose – and the odds are that you will lose – you are fully subject to the contest terms.
All of that horrible stuff said, I think it is possible to have contest terms that are fair to photographers, for example:
- Contest promoters, et al would acquire no license to use the photographs of those entrants who do not win, with the exception of the right to display the photographs on things like web site voting pages or a public announcement of finalists.
- Any and all rights to use the photographs of entrants would expire at the point that they were no longer potential winners of the contest.
- Any cost-free licenses acquired from winners would be limited to uses directly connected to the contest itself. For example, if the winner’s photograph is to be published on the cover of an issue of a magazine, that should be spelled out and part of the terms. It is legitimate for the contest promoters to use the winning photograph on a web site announcing the outcome of the contest.
- No additional, undefined and general future use would be permitted without a separate and additional agreement with the winner. For example, the company operating the contest would not acquire the unlimited right to use the winning (much less the merely entered!) photographs for any purpose whatsoever at any time in the future. The associates of the company most definitely would not acquire such rights.
- Neither entrants nor winners should be legally responsible or take on liability for licensed use of their photographs in ways they can no longer control under the broad terms of the contest agreement.
- Etc.
So, today I thought that I had found a contest that would not violate these reasonable terms. There is an Aperture Nature Photography Workshops contest in which the winner gets to participate in what looks to be a fine photography workshop. Being that the contest is run by a photography organization I assumed that the terms would be favorable to photographers. And the prize is pretty cool – a chance for the winner to participate in a very interesting photography workshop with many (all?) costs covered. It was even more reassuring to read the following text at the contest announcement page – (I have highlighted sections for emphasis):
Each winner will win a cash travel allowance, hotel, food, ground transfers, as well as prizes from our sponsors. It’s free to enter. You get to keep all Copyrights to your images. There’s no catch. Please read the complete contest rules for more information.
Well, yes and no. You do get to “keep all copyrights to your images.” But anyone with the tiniest bit of understanding of copyright law sees that line and thinks, “Well, duh!” (For the uninitiated, when you “sell” your photographs you normally merely “license” specific uses of the photographs – and you retain full ownership and you do not surrender your copyright.) But that’s not the issue. It isn’t about your “ownership” of your work; it is about the license that you grant to other parties to use the work you own when you enter such contests. In this regard, it seems to me that there is very definitely a “catch” – several in fact!
Here is what the contest terms say, in part (again, italic/bold type added for emphasis):
Your entry to the contest constitutes your agreement to allow your photographs — and your name, occupation, city and state of residence — to be published as selected award winners in all marketing materials related to the workshop and to be published or used on websites owned or operated by Bourne Media Group, Apple and all vendor sponsors of the contest; and used for promotions of the workshop including, but not limited to, exhibitions, a photo contest calendar, a compilation book or electronic collection of photographs, online photo features and contests, and web pages providing information, updates, rules and photography tips. Entrants retain Copyright ownership and all other rights to future use of their photographs.
Yuck! In case you don’t see the problems:
- Every entrant assigns the rights described here to all the parties listed.
- Every entrant – that means, with the exception of the first clause (“…as selected winners…”) everyone who loses – agrees that personal information about them can be published along with their photographs under the terms of the second and third clauses.
- Every entrant agrees that his/her personal information and photograph may be used in ways not specified nor related to the contest (read this very carefully and you’ll understand this) by Apple Computer, Bourne Media Group and all vendor sponsors. Who are the “vendor sponsor” and how many are there? We don’t know. But we do know that they have all acquired a free, unlimited (read this carefully – you’ll see) license to use any and all entered photographs for purposes that are not limited in this clause.
I’m not certain how this happened in a contest being conducted by photographers for photographers. I want to believe that it was an accident – I have some reason to suspect that this may be the case – and that someone was careless about the terms and wording of the agreement. But if the folks at Aperture Nature Photography Workshops don’t understand this, well, there are a lot of questions to be asked.
If you entered, I hope you win! If you lose, I hope that you take time to read contest terms very carefully in the future.
(This post is offered without malice towards the promoters of this particular contest – I posted it after the contest closed and have acknowledged several positive aspects of the contest and its promoters. It is my intent to offer a combination of facts from the contest description and terms pages along with personal, non-expert opinion for you to consider. For further information and clarification of contest terms as written I feel like it might be a good idea to contact the contest promoters directly or consult with qualified legal professionals who are experts in intellectual property rights, copyright, and contract law. My goal is to strongly encourage photographers to carefully read and fully understand the terms of contests they may consider entering before they decide whether or not to do so.)
Dan, thanks for the explanation. I hadn’t fully read all the rules before I submitted a photo to this contest, but have since removed it from the pool. Here’s why. In your scenario, the person in the shot is a friend and would hopefully understand that you didn’t realize the shot would be used commercially, and since you didn’t really benefit from the use, isn’t likely to pursue legal action against you. The shot I submitted was of a loggerhead turtle at the Georgia Aquarium. I don’t know what the Aquarium’s policy is regarding commercial use of photos at the aquarium, but I know the Atlanta Zoo specifically forbids any for profit use of photos of the animals there. If I did win, and the aquarium does have a no commercial use policy, then I’m SOL. When the aquarium fiiles suit, they aren’t likely to just feel sorry for me and drop it like a friend would.
While it’s certainly not clear, I think the ANPW contest intended this part to mean the license only applies to the winners.
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It still leaves far too much room for unscrupulous vendors to do whatever they like with an image by awarding non-prizes, like coupons for their products, and declaring those entries winners as well.
Marcus, thanks for writing.
I’m inclined to think that the ANPW contest promoter may intend this to apply only to the winners – and I’d be fine with that part of the agreement if its text made that clear. It could be done with a few changes to the wording. Now, if the promoter says that their intent is that the terms apply only to winners but is not willing to alter the text of the legal agreement to bring it in line with their stated intent… well, one would be unwise to trust a party who essentially says, “I know the contract says I can do a bad thing to your, but trust me, I’d never do that!”
There is still another serious problem though. Although I did not focus on this in my original post – because I thought this contest had avoided the second major issue with contest terms – I now see that this contest also assigns complete financial and legal liability to the entrant for any claims that may come up as a result of the promoter or the other sponsors using the photograph. This is just plain crazy if you put the whole picture together. First the entrant must provide the promoters, et al with an unlimited license that he/she (the photographer) can no longer control – and this license allows the promoters, et al to use the photograph in ways not foreseen by the photographer but with no oversight at all from the photographer. There are a whole bunch of potential problems here – let me give just one example:
You (the photographer) ask your friend if she would mind you taking a photograph of her sitting by the side of a lake. She says, “sure.” The photograph turns out to be really wonderful and you imagine it might be worthy of presentation as an art print. You show it to your friend and she agrees: “It is beautiful!” You find out about a “nature photography” workshop and you think your photo might have a chance. You ask her if she minds if you enter it and she says, “Go ahead, that would be cool!” (Remember that the contest is limited to non-professional photographers who cannot be expected to know about formal releases, the differences between different types of usage, etc.) You enter the photo. It really is a great photograph, but it doesn’t win. One of the sponsor associates likes the photo though, and decides to use it in an advertising campaign for some product. Your friend is horrified to find that the nice nature photo she agreed to let you tae has now been used on advertisements for a product she hates – or she is just smart enough to know the differences among types of usage, and that commercial use carries some very different requirements than entering a pretty picture in a contest. She says, “I never told company X that they could use a photograph of me to promote their product!?” She files a suit against them for illegal commercial use of an image. Company X politely points out that YOU are responsible for the use… over which you (remember, “you” are a “non-professional photographer”) had any say or even imagined.
(If you think this is an absurd scenario, here is a related post to look at.)
As another thought experiment, let’s say you made the personal non-professional photograph that you entered in a state or national park or any of a number of other places that place limits on commercial photography such as zoos, aquariums, even the Golden Gate Bridge. It is entirely legal for you to make your photographs of these places, but it is often not legal to do so for commercial purposes without permission and in many cases proof of liability insurance or payment of a fee and so forth. Your original creation and use of the photograph – even its entry into a contest for non-professional photographers – is probably entirely legal. However, if one of the contest sponsors elects to use their cost-free license to your photograph to place it in a “commercial” context the contest terms typically make you legally and financially responsible.
I know these may seem like an extreme examples, and I’m willing to to find out that contest promoters would never, ever do such a thing. Assuming that they are sincere in their claims about this the appropriate thing to do is to write terms that clearly reflect this by excluding any such use beyond that specifically associated with the contest and specifically described there, and probably something indicating that mutual agreement must be obtained from all parties for any use beyond that so defined.
But that is not what the terms of many such contests say.
Take care,
Dan
Hi Dan,
It’s good to know there’s other voices out there.
One such contest I found was http://www.collegeseen.org/
It’s really shameful that this is a contest from a higher institute of learning. It’s no surprise that if there is a bottom line for everything, we can always count on the bean counters to hatch a scheme to do so.
Here’s my post
http://rising.blackstar.com/photography-contests-license-to-steal.html
Yup, looks like another one. From their terms:
At least they are honest about the fact that it is a rights grab – they say as much in the first sentence.
BTW, are you on Twitter? If so, let me know so that we can follow one another and share this stuff.
Dan