Minor updates were made to this article in May of 2018. Note that the examples come from nearly a decade earlier, and that the parties mentioned may have changed their policies since they were originally posted. Although the specific examples are now dated, they still illustrate things that anyone considering entry in a “photo contest” needs to understand.

If you ever read the terms of many “photo contests” you have likely been appalled by some of them – and you should be! By simply entering many of them you surrender substantial rights to your own work. Today I want to share two current examples – each of which is very troubling though in somewhat different ways.

The first is an astonishing example that photographer Gary Crabbe has wrote about. The short story is that anyone who enters (note – not just anyone who wins, which would be bad enough) the 2009 Costco Photo Contest surrenders ownership of their entered photographs to Costco. That’s right – you don’t simply give away a cost-free unrestricted license to use your photographs without credit or compensation (as is the case in many other “contests”) but Costco actually ends up OWNING YOUR PHOTOGRAPH.

10. Entrant confirms and promises that entry is original and does not infringe the intellectual property rights of any third party. By participating, entrant agrees that ownership of the entry and all intellectual property rights in the entry is assigned to Costco, and will do all things necessary to give effect to that assignment.. Entrant agrees to sign any further documentation required by Costco to give effect to this clause.

As Gary points out, after you enter your photograph in this contest (BUT PLEASE DON’T if you care about your work at all!) Costco could sue you if you post it on Flickr, license it to anyone else, sell a print, etc.

The second example would have set a high-water mark for intellectual property rights grabs before I saw Gary’s astonishing post – but I’m going to share it anyway. It saddens me that a) the offending party is the Sierra Club, of which I’ve been a member and supporter for decades, that b) this is not the exception among Sierra Club contests, and c) when I attempted to bring this problem to the Club’s attention on several occasions the response was offensive and diversionary and demonstrated no understanding of just how terrible this is for photographers, amateur or professional.

The Club is sponsoring a National Parks Photo Contest. According to the Club contest web site they received – and now virtually own – 250 “excellent” entries, from which they have selected 20 “finalists.” From among the finalists a single “winner” will be chosen. Using the Club’s own characterization of the entered works, they now have acquired the following rights to approximately 250 “excellent” photographs “entered” in the contest as described in their terms:

By submitting User Submissions to this site, you hereby grant Sierra Club an irrevocable, non-exclusive, worldwide, royalty-free license to reproduce, use, copy, sell, distribute, create derivative works from, publicly display, or publicly perform the User Submission (or any portion thereof) in perpetuity, and the Sierra Club may sublicense all or part of its rights under this license or assign them to third parties.

Got that? The Club how has rights to do essentially anything for any purpose – including selling the rights to others! – with the 249 photographs that were ENTERED but did not win, not to mention the photograph submitted by the “winner.” (The winner of a contest should expect that the contest will use the winning entry in some ways specifically spelled-out in advance and reasonably related to the contest – but these terms go well beyond that sort of reasonable agreement even for the winner.)

That is very bad… but it gets  even worse.

By entering the contest, all photographers (including the 249 “losers”) not only surrender the value of their photographs to the club but also agree to assume legal liabilities should the club decide to exercise its newly acquired unlimited rights under the contest terms.

By submitting User Submissions to this site, you represent and warrant that the User Submissions is your original work, that the User Submission does not violate any agreement between you and a third party, and that the User Submission shall not infringe upon or violate any law, agreement or other rights of any kind, of any third party, without limitation, rights affecting copyright, patent, trademark, unfair competition, contract, defamation, privacy or publicity. You agree that you will, at your own expense, defend, indemnify, and hold harmless the Sierra Club and its affiliated and related entities, licensees, successors and assigns, employees, officers and directors, representatives, contractors and agents from all claims, losses, damages and expenses of any kind (including, without limitation, attorneys’ fees and disbursements) arising out of or in connection with a breach or alleged breach by you of your obligations or warranties herein.

In other words, if the Club’s use of your photograph – over which you now have absolutely no control and which includes sub-licensing the photo to third parties without your permission – leads to any sort of legal action against the Sierra Club or its associates YOU will be responsible for all of the costs and penalties outlined above. For ENTERING the contest. The contest you lost. In more ways than you knew…

On two occasions I tried to explain to Club representative why this is so onerous and offensive to photographers – in many cases dedicated amateurs and hobbyists  who share the Club’s passion for the outdoor world and the environment and who are, like me, long time members of the club – and how it would be possible to create contest terms that respect the interests of the Club without trampling those of the photographers. In both cases the replies were clueless and, in my view, as offensive as the contest terms themselves.

On June 24 Sierra Club Communications Director Bob Sipchen responded to me in a forum post as follows:

June 24, 2009

G Dan et. al.

This is Bob Sipchen, the Sierra Club’s Communications Director. As a writer, I appreciate your dedication to strong intellectual property rights. Here, though, I think you’re barking up the wrong tree.

Tioga Jenny is throwing a fun little contest here. She doesn’t care if you shoot with a Hasselblad or a 1 mega-pixel cell phone. She’s doing this contest to encourage people to get outdoors, to help save the planet, and give photographers of all abilities a place to show off their images.

At Sierra magazine, which I edit, we negotiate fair fees for the professional photography we publish. We won’t, however, be paying the lucky winner of this contest for publishing the winning shot (we’ll probably run it pretty small) because this is an entirely different matter — and we’re being entirely transparent about that. Just as those who comment here don’t expect to be paid for their words, even though some are clearly quite talented writers, the photographers who offer their photos are doing so simply to share.

There are only three reasons to enter this contest: 1) to have fun; 2) for the pure glory of it; 3) to support our nonprofit organization’s mission to explore, enjoy, and protect the planet. Pros are welcome to enter, but they know full well that they are doing so pro bono, that they are in essence making a donation to a cause they find worthy.

If you do submit a photo, you do so under the Terms of Use stated above.

Bob Sipchen

Bob’s response is entirely disingenuous, and it doesn’t even address my points. He begins his “rebuttal” by pointing out that The Club won’t be “be paying the lucky winner of this contest for publishing the winning shot.” He fails to even note that the problem never was about “paying the winner” – it was about the Club taking unlimited rights to all photographs entered in the contest, a subject he simply ignores. If the photographs have no intrinsic value (e.g. – this is a “fun little contest” and entrants simply want to “share”) then the Club has no need to acquire the sorts of rights outlined in the terms. They could simply acquire the right to post the entered photographs, for example, on the web site pages devoted to the contest. Bob is right that no one “expects to be paid” for posting a small photo in an open forum. But that is not what the terms refer to. They go well beyond “sharing a fun photo in a web forum” and that is the heart of the problem here. If the Club only wantd to use photos in this context, the Club should write contest terms that align with that goal – not terms that cover far more ground than this.

As a long time Club member and as one who would willingly offer the club a cost-free limited license to use my images in the right context, I regret that I think it would be a very poor choice for any photographers to enter any Sierra Club photography contest or post any of their work on Sierra Club sites until the Club changes its policies.

I encourage all photographers who are Sierra Club members – and I know there are plenty of us! – to contact the Club and explain why this lack or respect and fairness towards photographers is unacceptable and not in keeping with the grand traditions of the Club.

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G Dan Mitchell is a California photographer and visual opportunist. His book, “California’s Fall Color: A Photographer’s Guide to Autumn in the Sierra” is available from Heyday Books and Amazon.
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