Arts Law regularly reviews the terms and conditions of competitions and rates them out of five stars. Our review looks broadly at the terms and conditions of a competition. In particular, we look closely at how a competition deals with an entrant’s copyright and moral rights and consider this in light of the prize. Entrants should always take into account the possible profile-raising which may result from being a finalist or winner.
By accepting the terms and conditions of a competition, entrants should be aware that they may be entering a legally binding contract.
For more information, see our free information sheet on competition conditions. Artists are welcome to contact Arts Law for legal advice on the terms of a competition. We also invite competition organisers to contact Arts Law for best practice assistance to make their terms and conditions fairer for artists.
Please note: Prior to February 2018, Arts Law’s rated out of five stars only the terms of a competition which dealt with copyright and moral rights using our previous rating systems. Arts Law’s competition reviews are now more holistic, such that our rating out of five stars now reflects a broad review of all the terms and conditions of the competition.
We have reviewed the terms and conditions of the Josephine Ulrick & Win Schubert Photography Award out of Queensland. Details about the competition can be read here and the General Terms and Conditions of Entry are here.
The competition is currently open with a submission deadline of 5:00pm on Friday 24 August 2018. The competition is open to all Australian residents.
Arts Law has rated this competition 3.5 out of 5 stars.
The Josephine Ulrick & Win Schubert Photography Award is an acquisitive photography award and exhibition concentrating exclusively on still photo-based media. It provides an open opportunity for established and emerging Australian photographers to showcase their work. It is open to all Australian residents.
The competition is administered by Gallery at HOTA Home of the Arts (the Gallery) in Queensland and supported by the Josephine Ulrick and Win Schubert Foundation for the Arts, and the exhibition is held at the Gallery.
Approximately 25 to 30 works will be selected as finalists and will be exhibited at the Gallery. A winner will be chosen from these finalists and the winning work will be automatically acquired for the Gallery’s collection.
First prize is A$25,000. There is a further A$25,000 available for the Gallery, in its discretion, to make additional acquisitions from the finalists’ works. The terms state that all works must be available for acquisition or sale (entrants get to state the sale prize on the entry form). Entrants should note there will be a 25% commission take on both acquisitions for the Gallery’s collection and on sales. This is acceptable for sales to third parties, but in respect of acquisitions the competition should clearly state whether the Gallery is effectively intending to acquire the works for its permanent collection at a discounted rate. It is also unclear whether the first cash prize will actually be less 25% and the terms should clarify this up front.
This is a great profile raising competition for the winner and indeed for all finalists. As stated on the organiser’s website, this ‘competition is considered one of the most important awards for contemporary Australian photographic practice’. The cash first prize is attractive. However, the wide copyright licence and the lack of moral rights protection, is reflected in our less than perfect rating.
In terms of how copyright is dealt with, all finalists must grant the Gallery, and in addition its touring partners and sponsors, a non-exclusive, perpetual, irrevocable, worldwide and royalty free licence to use their images for advertising and promotion of this Award and the Gallery’s permanent collection. It is good that this is non-exclusive because this means that finalists are free to license their work to other parties. However, the licence is very broad. Best practice is to limit licences in time (e.g. five years) and expressly state where the images will be used (e.g. online, print). It should also be clearly stated that the licence is for ‘non-commercial purposes’. Further, the terms should name the touring partners and sponsors. Finally, while it is clear that entrants are not giving away their copyright, ideally the terms should clearly state that all entrants retain copyright in their works. Entrants will need to consider whether they are happy for images of their works to be used forever by these parties. On the other hand, so long as the entrants are credited, perhaps such use of their images could be good profile raising.
Turning to moral rights, disappointingly the terms and conditions are silent. Under the Copyright Act, photographers have the moral rights to be attributed for their work, and to control any changes to their work which could harm the integrity of their reputation (such as edits made to an image). Best practice would be to positively affirm these rights in the terms. To make them more artist friendly, there could be a positive undertaking to always credit the selected photographers when their works are displayed and whenever they are used under the licence they are giving. There should also be a positive obligation in the terms that the entrant’s permission must first be sought in respect of any edits to the images, or at least in respect of any edits which are not reasonable. As stated above, so long as they are credited, then the licence could be seen as acceptable and profile raising, even for non-winners.
Other than that, entrants should be aware of a few onerous terms. The Gallery disclaims liability for the works at any time including when in its care. It is fairer for the Gallery to have responsibility for the works while they are in its possession and control and we would have preferred to see a term which provides insurance against loss or damage at least while the works are at the Gallery. Entrants should also be aware that if their works aren’t collected within one month of 14 December 2018, the Gallery will dispose/remove their work as it determines. This would no doubt be very distressing for an entrant if this were to transpire and so entrants should ensure they keep on top of the collection of their work. Also, the terms are silent as to when the artist will receive the payments from the sale of any of their works.
Overall, taking into account the generous cash prize, the exhibition, possible further cash acquisitions and sale of works, and the profile raising, this is a good competition. If there were terms dealing positively with entrants’ moral rights as well as restricting and clarifying the copyright licence in the ways mentioned above, and addressing the other matters we identified, then we would have given a higher rating.
You can lodge a query with us here if you would like to obtain advice from Arts Law about this competition.
Please email us at [email protected] to tell us about any competitions or prizes you think we should check.
See more about Arts Law's campaign to improve competition terms and conditions in the Prizes and Competitions section.