Competitions provide a necessary forum for artists, especially those embarking on their artistic careers, to advertise and promote their particular talent to a wider audience and to seek and possibly secure future commissioning for their work. For all manner of artists, creating works for and entering competitions at one stage or another in their career is so prevalent as to be considered a rite of passage! Regardless of whether you are entering your first competition or your hundredth, the devil is likely to be found in the competition detail.
Entering competitions always involves that one unpopular component – paperwork. And that paperwork is more often than not stuffed with what appears to be way too much information. It is, of course, here, in the competition detail that an artist will likely find the not-so-nice face of the competition. Thus potential competition entrants must be aware of, and beware of, the competition detail.
To assist all artists in their future competition endeavours, the following are the
Top 10 factorsto consider prior to submitting your work:
1. WHO IS RUNNING THE SHOW?
If entering a particular competition is in the pursuit of promoting your artistic talent, it is unlikely you would enter a competition without first contemplating the competition organisers' reputation and how entering that particular competition could assist you. And you'd be right! It is worthwhile taking the time to consider who is running the competition, why they are interested in the arts, whether they have held the same or similar competitions previously, and if so, was it a successful event that has promoted the competition? No matter your motives, the preparation for entering a competition takes time and effort, and there is little use investing that time and effort if the competition organisers cannot be relied upon to fulfil their side of the bargain.
2. TERMS AND CONDITIONS (T&C)
All competition entrants should thoroughly review the competition T&C prior to entering. By submitting or signing the entry form to the competition you are likely to be accepting and agreeing to be bound by the T&C, whether you have read and understand the T&C or not. T&C may be attached to the actual entry form, or may be referred to in another document, in which case you should find and review this other document. T&C are a contract and thus legally binding. If you do not comply with the T&C you will be in breach of the contract and liable to compensate the competition organisers' for the consequences of your breach. So, for your own safety, be certain of what you are agreeing to, what you can expect in return, and what rights you may be giving up by entering the competition. This may all sound very tedious, but knowing what to look for makes the process a whole lot easier.
3. WHAT RIGHTS ARE YOU GIVING UP?
You as the creator of the work obtain copyright in that work, being the exclusive right to reproduce (copy) and use your work in certain ways. Merely submitting your work to a competition does not by itself usually require you to give away your copyright. However, it is common for competitions to want to obtain a licence/permission to use your work for a period of time in relation to the competition. What you need to watch out for is the duration and extent of the licence over your copyright interest in the work, and when the licence is to apply. This is so you do not lose the ability to formulate earnings from the work in other ways than just through the competition. Be aware of T&C that state a licence over the work:
occurs upon entry and thus does not relate to whether the work wins the competition or not, whereby every entrant regardless of reward gives away rights in their work;
is "exclusive", thus disallowing you from licencing the work to another,
is "permanent", meaning the licence lasts for the life of copyright in the work,
is "irrevocable", thus the licence cannot be terminated,
is "royalty-free", meaning that no matter the use of your work by the competition, they do not need to compensate you for it,
is "world-wide", being throughout the entire world, and
may be "sub-licenced", whereby the competition may licence your work to third parties without any payment to you for the privilege.
Ask the competition organisers to limit any exclusive licence using broad terms like above to the winning entries only. A non-exclusive licence, though still needing careful attention, is far less limiting as it permits you to licence your work to more than one party. Most competitions do not require assignment, being the transfer to the competition of your copyright interest in the work you have created. If it does you should ask why this is necessary, and think seriously about the effects of entering, as you will lose all rights, including the right to copy your own work. For example, Jameson Irish Whiskey is currently holding a short film competition called Hollywood Hot Shots. The competition T&C require "all entries and any copyright subsisting in the entries [to] become and remain the property of the Promoter". Thus not only does each entrant lose copyright in their entry, they also lose ownership of the work.
4. OWNERSHIP OF THE WORK
This is separate from the copyright in the work. Confirm whether the competition organiser intends to return the submitted work after the competition or not. If it does not intend to return the work, or destroy the work, it is retaining the work without compensation to you of any kind. For example, if you have submitted a sculpture or painting to a competition, and the T&C state that the competition organisers shall retain all entries rather than returning them at the end of the competition, then you will have lost the opportunity to sell that work after the competition and have provided the competition organiser with that opportunity instead.
5. YOUR MORAL RIGHTS
In Australia moral rights exist automatically upon the creation of a work. They provide that artists be named, and named correctly, when their work is used, and disallow the treatment of a work in a manner that is derogatory or harmful to the artist's honour or reputation. However, it is not uncommon for competition T&C to request the entrant waives their moral rights in the submitted work. For example, the recent Nokia Connect – Go competition T&C state that by submitting any information or materials for the competition, the entrant waives all moral rights and rights of attribution, integrity and identity to the extent permitted by mandatory laws.Such a condition circumvents one of the main drawcards of any competition, being the publicity an artist may receive for their work, which they can only receive if they are properly accredited. But isn't all publicity, good publicity? This is unlikely in a situation where the artist's work is presented in such a way as to negatively affect the artist's reputation.
Competition T&C always require an entrant to guarantee or warrant or promise that certain details regarding the work being submitted are true. For example, the entrant warrants to the competition that they are the sole copyright owner of the work, and that the use of the work will not infringe any intellectual property rights of any third person. Warranties are often coupled with an indemnity, which is an obligation to compensate the organiser for any loss or damage it suffers if the warranties or promises you have given are false. Do not enter a competition unless you comply with the warranties or promises given, as there may be financial or other consequences if you are found to be in breach of a warranty or promise. Also check to see if the competition organiser is in turn making any warranties or promises that benefit you, the entrant, and monitor their compliance.
It is not uncommon for an artist's work to include reference to or contain part of a work created by another ("other work"). Thus, in order to be able to comply with a warranty that the entrant's work does not infringe the intellectual property rights of a third person, the entrant is required to have sought permission (clearance) to use the other work from the person or organisation owning the rights to that work. It is much easier if clearances are obtained prior to the creation of the new work as the rights to the other work may already have been exclusively licensed, in which case the artist cannot include the other work in their new work. It is also important to ensure the person or organisation giving the clearance actually owns the rights, and a warranty and indemnity should be sought from them to this effect.
8. USE OF YOUR NAME & LIKENESS
Competition T&C will likely include permission to use the artist's name, biography and likeness in connection with the competition. For example, the Hollywood Hot Shots competition T&C state that by entering the competition "entrants agree and acknowledge the Promoter may use any comments obtained from them, their name, and/or likeness and any photos or recordings taken of them for the Promoter's future promotional and marketing purposes without further reference or compensation to them."It is best to ensure that such a term is limited so as to prevent the competition organiser using your personal information in association with activities or products unrelated to the competition. You may also wish to request the right to approve any image of him/herself the competition organisers may wish to use in connection with the competition.
Make sure you know who is responsible for insuring your work at different stages. For example, Tourism Australia's "Nothing Like Australia" campaign T&C stated "The Promoter accepts no responsibility for any entries not received for any reason during the Promotion Period. No responsibility will be taken for lost, late or misdirected entries". If competition organisers are not prepared to insure your work, you need to consider how much you stand to lose if your work is damaged or lost. For example, if you have submitted a one-off artwork and it is lost or damaged during the course of the competition, you will not be compensated for that loss and you will no longer have the artwork either.You may wish to consider incurring the cost of insuring the work yourself for the duration of the competition until the work is returned to you.
10. ATTENDING AWARDS
Competition T&C sometimes require prize-winners attend an awards event. Ensure you are aware if it is your responsibility to cover the cost of attendance or if the competition organisers will cover your reasonable costs of attendance. It is important to consider how much notice you will need to attend the event as sometimes the T&C state that if you do not attend the event, you are not entitled to receive the prize. Consider the opposite scenario and whether you are entitled to attend if not obliged to attend.
Please be aware that it is often very difficult to convince competition organisers to change the T&C, especially if you are one of a large number of competition entrants. Therefore you should always be prepared not to enter a competition if the T&C are too onerous or you cannot comply with them.
Arts Law continues to advocate for fair and transparent competition T&C and has urged competition organisers such as Tourism Australia, Nokia, the National Cannabis Prevention and Information Centre, and the Australian Institute of Health and Welfare to amend unnecessarily arduous T&C (seehttps://www.artslaw.com.au/advocacy/archive/cat/prizes-and-competitions/).An example of best practice is the WA Music Industry Association's WAM Song of the Year Competition. Arts Law could not find anything unfair in the T&C, which only licence the rights of category nominees, who allow their songs to be posted online for public voting, and category winners, whose songs may be included on the compilation CD.
So, if you come into contact with T&C that seem unfair, let us know so that we may continue to campaign for ethical and transparent conduct in competitions and thus for artists' rights!
Delwyn Everard is a senior solicitor and the deputy director of Arts Law. Anika Valenti is a former Arts Law volunteer and currently solicitor at Arts Law.
Links to T&C discussed in this article are as follows:
1. Jameson Irish Whiskey Hollywood Hot Shots T&C http://www.liquorawards.com.au/competition/
2. Nokia Connects – Go T&C
3. Tourism Australia "Nothing Like Australia" campaign T&C
Related Arts Law articles:
Prizes and competitions: a reminder of what to look out for! https://www.artslaw.com.au/articles/entry/prizes-and-competitions-a-reminder-of-what-to-look-out-for/
Nothing Like Australia: just unAustralian https://www.artslaw.com.au/articles/entry/nothing-like-australia-competition-just-unaustralian/
Competition conditions info sheet: https://www.artslaw.com.au/search/6b3dd9c6b17496e455569458cf51263c/