Prizes and competitions: a reminder of what to look out for!
Suzanne Derry, Solicitor
Competitions are great opportunities for artists, however one thing many artists neglect is the competition terms and conditions. Often Arts Law speaks to artists who don't read the terms and conditions at all before entering their work. This is a problem because a set of terms and conditions for a competition will usually form a binding contract between the artist entrant and competition organiser, meaning there are legal consequences if you do not comply with the rules. These consequences can range from disqualification, forfeiting your entry fee, or in the worst case, 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 also 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 which contains 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 artist's practice, consider whether the terms will still apply to you if you do not win.
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. Ask yourself, do I really want to give this away for free even if I don't win?
(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" as the organisers can then edit or use a portion of the work.
(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.
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.
You should ensure that you understand the legal meaning of terms and conditions of entry for competitions as they will often form a binding contract between you and the organiser. 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. Arts Law can provide a document review of the terms and conditions. This advice will assist you in assessing whether you are comfortable you can agree to all of the terms or conditions, or decide to negotiate with the competition organiser, or decide not enter the competition at all.
Other relevant information
• National Association for the Visual Arts (NAVA) code of practice includes a chapter on competitions at www.visualarts.net.au.
• Contact a relevant industry body (e.g. the Australian Society of Authors, Australian Writer’s Guild, Musicians Union or NAVA) and ask whether they know about the competition and whether there is any industry information they can provide about this competition.