Copyright: Image by Fancycrave on Unsplash
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 https://www.artslaw.com.au/advocacy/prizes-and-competitions ) 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.
This month, Arts Law has reviewed the terms and conditions of the Wangaratta Contemporary Textile Award 2019 run by the Wangaratta Art Gallery (the Gallery) in Victoria. 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 1 March 2019, 5pm AEST. The competition is open to all Australian professional practicing artists working in textile media.
Arts Law has rated this competition 4.5 out of 5 stars.
Prior to publishing our review, Arts Law spoke with the Gallery about its terms and conditions. Arts Law is impressed with the Gallery taking steps to update its terms and conditions, despite the upcoming competition deadline, which demonstrates its respect for artists’ rights. Further, the Gallery indicated to Arts Law that it intends to uphold the artists’ interests.
The Wangaratta Contemporary Textile Award 2019 is a A$10,000 acquisitive award and exhibition hosted by the Gallery which focuses on contemporary Australian textile art. Entry is open to all Australian practising artists working in textile media.
All works submitted must be available for exhibition and sale. A shortlist of works will be selected for the exhibition at the Gallery, from which a winner will be chosen and the winning work will be automatically acquired for the Gallery’s collection.
The Gallery, at its discretion, may also make additional acquisitions from the shortlisted works.
Entrants get to state the sale price on the entry form. Entrants should note there will be a 20% commission taken by Gallery 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. In any event, entrants are advised that they should add 20% to the value of their work to ensure that their proposed sale price takes the Gallery’s commission into account.
In terms of how copyright in the works is dealt with, the shortlisted finalists grant the Gallery a non-exclusive, non-commercial licence without fee to allow the reproduction of images of their artworks. This licence is stated to “include” reproduction of the artwork for purpose of the production of the catalogue (which is further limited to a print run 1000 copies), website, publicity and associated publications, marketing and educational purposes solely related to the publicity period of the Award of 2019 (being May 2019 – July 2021). We are very pleased to see that this licence is limited to finalists only (as opposed to being required from all entrants), that it is for a fixed and reasonable period, that it is non-commercial (in that the Gallery can not commercialise its reproduction of the artworks) and importantly that it is non-exclusive (meaning the artist is free to license the use of its artwork to third parties). It would be even better if it was expressly stated that the use of the artworks must only be for the purpose of promoting the Award and/or Exhibition. That said, it is a good example of an artist-friendly copyright licence.
Note, this licence only applies to finalists and the winner must enter into a separate licence and collection agreement (the terms of which are not yet currently stated).
It is excellent that the Gallery has clearly acknowledged that unsuccessful entrants entry images and artist details will not be used or shared.
Turning next to moral rights – that is, an artist’s right to be credited and for their work to be treated respectfully (that is no derogatory treatment such as changes or alterations which affects their artistic integrity). We note that the terms and conditions do not mention how they will deal with moral rights. Best practice would be to include a term which states that the Gallery will always credit the selected artists 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 an artist’s permission must first be sought before any alterations / changes are made to their works when they are reproduced, or at least in respect of any changes which are not reasonable changes.
Finally, a few other points to note include that the Gallery has dealt sensibly and reasonably with liability issues. If an artwork is selected for the award and exhibition, the artist will be liable for the transport of the artwork both to and from the Gallery and should maintain the necessary insurances to manage the risk to the artwork during this period. However, the Gallery, in line with industry best practice, has taken responsibility for the works while they are in its possession and control and will insure the works against loss or damage at least while the works are in situ at the Gallery and up until they are collected. Entrants should also note that the terms are silent as to when the artist will receive the payments from the sale of any of their works.
Overall, this is an example of a great competition, which is reflected by the high rating we have awarded. Our rating takes into account not just the copyright terms, but the generous cash prize, the exhibition opportunity, possible further cash acquisitions and sale of works, and profile raising. For an even higher rating, we would have liked to have seen express terms dealing positively with entrants’ moral rights in the ways outlined above.
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.