Nothing Like Australia Competition: just unAustralian

By Suzanne Derry on 30th June 2010

Recently Tourism Australia1 ran a competition called 'Nothing like Australia' which attracted 29,031 photo entries. While the competition itself may have seemed innocuous it was the face of a set of very onerous terms and conditions. Read on to find out more about the terms and conditions, and learn some quick tips for protecting your intellectual property when entering competitions.

Competition background: fun and games until you read the fine print

Tourism Australia launched the 'Nothing Like Australia' competition in March this year. The premise of the competition was that entrants would send in a photograph of an Australian 'experience' and complete the sentence starting with the words, "There's nothing like..." to complement that image. These images would be uploaded daily onto the Tourism Australia website. Entrants then stood to win a camera, or, if their image made it to the top 8 (one per state or territory) they stood to win $5,000 to be spent on travel. The image selected as being the best image of the top 8 could win a $25,000 prize to be spent on travel. What lay beneath the allure of these fun prizes, and the marketed opportunity to 'share your Australian experience', was a disadvantageous set of terms and conditions, not readily apparent to the entrant from the friendly face of the competition.

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Aspects of Sydney by Jo Teng © Jo Teng Advertising Sydney: Sydney Harbour Bridge, Bondi Beach, Sydney food. Photos by and copyright to Jo Teng

The fine print: unfair terms and conditions

When the competition first came to Arts Law's attention, the terms of the competition effected an assignment of the copyright in Tourism Australia's favour. This meant that photographers who submitted images gave their copyright in the photographs to Tourism Australia and could not use their own photographs themselves. Arts Law, the Australian Copyright Council and the National Association for Visual Artists wrote to Tourism Australia noting that an assignment of copyright was not necessary and that a simple licence, terminating at the end of the competition would suffice.

Tourism Australia did change their terms and conditions to a licence only, but their licence over the images was far more broad than was necessary or fair - for example, the licence was perpetual (meaning that the licence lasts for the life of copyright in the image) and royalty free (meaning that no matter what use Tourism Australia makes of the image, they do not need to compensate the photographer entrant). Perhaps most concerning is that the licence granted under the new terms and conditions is capable of being sub-licensed to third parties for their exploitation, without any payment remitted back to the artist. In addition to these issues associated with the copyright in the image, the terms and conditions of entry also said that the photographer entrant consented to any infringement of their moral rights. These are rights which exist automatically and entitle the creator of a work to be attributed and not have anything done to the work which effects a derogatory treatment of that work.

Arts Law Speaks Out For Artists!

What to look out for next time you enter a competition

When entering a writing, art, music/band competition, film or play festival you need to pay close attention to and understand the terms and conditions of entry.

By signing an entry form you agree to be bound by the terms and conditions (rules) set by the competition organisers. These terms and conditions are a contract which means that there are legal consequences if you do not comply with the rules.

The consequences of non-compliance (a breach) may include being disqualified from the competition, forfeiting your entry fee, or being sued. Should your breach cause loss to anyone else (including if the competition organisers are sued by someone else because of your breach) you may be required to cover all costs associated with this.

So, the first thing to do when entering a competition is make sure that you have read and understood what the terms and conditions say. The entry form may merely contain a statement like, "I agree to comply with the terms and conditions of entry" and then refer you to another document to review the complete set of terms. Ask for this other document. Be sure that you know what is expected of you, what you can expect in return and sometimes, what other opportunities you are giving up by entering the competition.

Below is a checklist of things to consider when entering a competition

(a) Who is running the competition?

Ask yourself, what type of reputation they have in the industry and whether they can they fulfil their side of the bargain - to award the prize money, attract publicity, secure the deal they are promising.

(b) Are you eligible?

Consider whether you fit the criteria for eligibility to win. Most competitions have rules on who can enter and the specifications of the subject matter of the material, for example, the length of the film entered or the originality of a painting.

(c) The fine print

While prizes and exposure remain very useful to an artists practice, consider whether the terms will still apply to you if you do not win.

(d) Copyright

The terms and conditions of entry to a competition should refer to the copyright in the work submitted. Merely submitting a work to a competition does not, by itself, require you to give away your copyright. You may, depending on the purpose of the competition, licence the organisers to use your copyright for limited things, for a limited time, but this is very different from giving away (assigning) copyright ownership entirely. Most competition organisers do not need an assignment of your copyright in order to use the work you submit for the competition or any other associated uses specific to that competition. If they ask for an assignment, you should ensure you understand how losing your copyright will impact you professionally.

(e) Ownership of work

Be wary if the organiser gets to own your work and you get nothing in return. You are losing the opportunity to sell your work after the competition. This could be a big issue, particularly if you spent a lot of resources on it.

(f) Moral rights

Sometimes, competition terms and conditions require an artist to give up their moral rights. Be cautious if the terms state something like "The entrant consents to any infringements of their moral rights by the organiser" or "The entrant waives their moral rights."

(g) Use of your name

In many circumstances, the terms of a competition include something like, "The entrant consents to the organiser using their name, biographical details and likeness in connection with the competition." This means that the organiser can use any image of you, your life story and your name. It is best for a creator to ensure that such a term is limited in a way that prevents an organiser using their name in association with activities or products unrelated to the competition.

(h) Warranties

In addition to referring to your copyright, rules of competitions will usually require you to guarantee or warrant (promise) that certain things are true. This term is sometimes followed by an indemnity, which is an obligation to cover the organiser's costs if these promises are false. Do not enter a competition unless you comply with these rules as there could be large financial (and professional) consequences if you are later found to be in breach of them.

(i) Transport and insurance

Usually terms and conditions of entry will include who is responsible for paying the costs of transporting the work to and from the organisers. Make sure that you also know who is responsible for insuring your work at different stages.

(j) Attendance at an event

Terms and conditions of entry sometimes require that winners attend an event to be presented with their award. Read the terms and ensure you are aware if it is your responsibility to cover the costs of your attendance or if the organisers will cover the reasonable costs you incur to attend.

Seek advice

You should ensure that you understand the legal meaning of terms and conditions of entry for competitions. Seek advice about them before signing or clicking 'I agree' to ensure you are not agreeing to something which you cannot deliver or are not comfortable with.


Suzanne is a solicitor at Arts Law.
 

Footnotes

1 Tourism Australia is the Australian Government body for promoting Australia as a tourism destination.

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