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 prize or competition. We look particularly closely at how a prize or competition deals with an entrant’s copyright and moral rights. We weigh this, and other considerations, against the potential prize to develop our final rating. Where possible, we contact the prize administrators to discuss any issues from our initial review which often results in a positive discussion and a good outcome for both artists and the prize or competition.
Arts Law is committed to ensuring fair treatment for artists, at the same time as taking a practical approach that considers the commercial constraints of a prize or competition. We reiterate to any artists considering entering a prize or competition that by accepting terms and conditions they may be agreeing to a legally binding contract. At the same time, entrants should always consider the possible profile raising which may result from being a finalist or winner. We take these factors into account when undertaking our reviews.
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 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, in that our rating out of five stars reflects a broad review of all the terms and conditions of the competition.
This month, Arts Law has reviewed the terms and conditions of the Unscene Short Film Competition which is a national competition out of Victoria. Details about the competition can be read here and the General Terms and Conditions of Entry are here.
The deadline for this competition is 11:59pm on Wednesday 17 October.
The competition is open to emerging filmmakers who are Australian residents, over 18 years of age and who have not already produced or directed a short film which has been made with full or part financing from a government film financing agency.
Arts Law has rated this competition 3.5 out of 5 stars.
This competition requires entrants to produce a short film (maximum 5 minutes) with the theme “Choices”. The film can be a drama, comedy, documentary, mockumentary, experimental or any hybrid of these forms.
We note at the outset, there is an issue of ambiguity around who the actual “Promoters” of the competition are – it is unclear if it is Village Cinemas alone, or Village Cinemas and Events Cinemas jointly or Village Cinemas, Event Cinemas and Swinburne University collectively. This is important for interpreting the terms and conditions and understanding who exactly gets the licence to use the winning film.
The competition is run in two stages after entrants have uploaded their films to Vimeo. Stage One involves the selection of finalists – one finalist is chosen by the public through online voting, and the remaining finalists by the competition organisers. Stage Two involves the selection of three winners from these finalists.
This competition offers attractive cash package prizes. In terms of cash prizes, first prize is $10,000, second prize is $2,000 and third prize is $1,000. Each of these winners also receives expensive filming equipment (including cameras from the Blackmagic range). Further there are profile raising prizes – all winning films will be played in selected Village Cinemas location foyers for 6 months. The first prize winner also gets a “short” of their film played nationally across the Val Morgan pre-show for a 12 week period. These are great prizes for emerging film makers. That said, we are concerned by ambiguity in some of the terms which seems to provide the Promoters with room to move on the prizes. For example, the Promoters can cancel or postpone “any element of the prize” without offering any compensation in lieu (see clause 31). It is unclear what this exactly means – theoretically they could cancel the showing of the films in the Village Cinema foyers. Another term says that the Promoters “accept no responsibility for the … availability of any element of the prize” (see clause 29).
Overall, while the prizes are attractive and it is a great profile raising opportunity for emerging film makers, the ambiguities in the terms, the wide copyright licence and the lack of moral rights protections is reflected in our lower rating.
Turning to how copyright is dealt with, it is excellent that all entrants are not required to give away the copyright in their films. Quite reasonably, the three winners are required to give an exclusive, irrevocable copyright licence, which we are pleased to see is limited in time (apparently 12 months, although, on a closer look at the dates this may actually only be effective for six months from the date the winners are announced). The licence is to be granted to the “Promoters”, whoever they are.
We are concerned by the breadth of the licence – the “Promoters” are licensed to use and display the films at their ”discretion”. Effectively, they could use it for any purpose. Rather, it should be limited to use and display for promotion of the competition and the organisers. It is unusual that the licence is to be granted at a later date and has to be executed as a separate document. It would be better to include it in these terms and conditions.
What is also concerning is that the entrants have to agree to execute any other legal documents “including but not limited to” a legal release and indemnity (it is not stated what the release and indemnity would cover) and any other legal documents about undisclosed matters. This is not fair to artists. Best practice would be to include all the matters which are the subject of the agreement in these terms and conditions.
Turning to moral rights, disappointingly the terms and conditions are silent. Under the Copyright Act, principal producers, directors and screenwriters have the moral trights 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 a film). 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 winning entrant when the film is shown and preferably also on the Promoters’ websites and promotional material, and requiring third parties to also attribute when they use/display the film. There should also be a positive obligation in the terms and conditions that the entrant’s permission must first be sought in respect of any edits to the films, or at the least in respect of any edits which are not reasonable.
Apart from the ambiguities in the terms discussed above, other ambiguous terms include that a winner can be prevented from participating in “the Activity” (see clause 32) (which is undefined in the terms and conditions) and there is cross referencing to clauses which either don’t make sense or don’t exist under the current terms and conditions (see clauses 30 and 49).
We also draw the entrants’ attention to some unfair terms. For example, the Promoters exclude liability from any loss arising from the Promoter’s own negligence. It is also unfair to include a blanket obligation for winners to participate in promotional engagements – it should be “where reasonable”, and it would be better practice if the Promoters paid or contributed to the winners attending the prize announcement event.
Finally, as an aside, entrants should be abreast of the terms and conditions of Vimeo – as they have to upload their film on Vimeo in order to enter this competition.
The competition provides the winners with an opportunity to have their work exhibited nationally in established and respected cinemas whilst providing them with high quality equipment to further their filmmaking, not to mention great cash prizes. It is great that the winners only have to grant a short licence, but it is disappointing that the licence is unlimited in scope and that there is no undertaking to respect moral rights. We are also concerned by the ambiguity in the terms, particularly around the prizes and the other documents the entrants are required to sign. For a better rating the language used needs to be clearer and the ambiguities need to be addressed, the licence should be restricted as discussed above, moral rights need to be expressly addressed and the terms should clearly set out all matters to be agreed upon from the outset.
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.