The good, the bad and the ugly of competition conditions

At the time of authoring this article, Alison Patchett was a solicitor at Arts Law.

When entering a writing, art, music or band competition or a film or play festival you need to pay close attention to and understand the terms and conditions of entry.

By signing an entry form you agree to be bound by the terms and conditions (rules) set by the competition organisers. These terms and conditions are a contract which means that there are legal consequences if you do not comply with the rules.

The consequences of non-compliance (a breach) include being disqualified from the competition, forfeiting your entry fee, or 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 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 to review 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.

Who is running the competition?

Before we look at what the terms and conditions might say, a preliminary issue to consider is – who is running the competition? Ask yourself, what type of reputation they have in the industry? Have they held this competition before? Why are they interested in the arts? And, can they fulfil their side of the bargain – to award the prize money, attract publicity, secure the deal they are promising?

Although you may be able to sue an organiser if they do not comply with the terms of the competition, it is a lot less hassle to get it right from the start.

Are you eligible?

There is no point binding yourself to terms and conditions if you do not fit the criteria for eligibility to win. Most competitions have rules on who can enter. For example, the audition rules for Australian Idol state (amongst other things) that you must be between 16 and 31 year old to perform. The terms and conditions of the ABC Fiction Award for 2006 state that you must be over 18, an Australian resident and not an employee of the ABC, associated with the competition or immediate family of such.

The guidelines for entry to the Tropfest short film festival include requirements that the film is under 7 minutes long, includes the signature item for the year, is specifically made for Tropfest and has not been shown in public before. This year, one film, Snakepit, was disqualified after its screening on the finals night when it was discovered that the film fell foul of these conditions.

The fine print

There is no doubt that the cash prizes or prizes that promise more exposure are the drawcard for entrants in competitions. These can be fantastic opportunities for the winners, but you also need to consider the possibility that you do not win, and are still bound by the terms and conditions you agreed to. A prize of $150,000 for first place seems incredible, but if you do not win, consider what rights and opportunities you may have lost by entering.

Copyright

The terms and conditions of entry to a competition should refer to the copyright in the work submitted. Put simply, copyright is the exclusive rights to copy and use your work in certain ways.

Under the Copyright Act 1968 (Cth) the usual position is that a creator of a literary work, artwork, music composition or dramatic work is the copyright owner in it. For films, the copyright owner is usually the producer and for sound recordings made by unsigned musicians, the copyright owners will usually be the performers and the person who owns the recording medium that the music is put onto. There are exceptions to these ownership rules, for example if a work is created by an employee.

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, have to allow (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. If they ask for this, you should question why. What is an organiser going to do with your work, during and after the competition? Why isn't a licence appropriate? Without wanting to sound paranoid, if an organiser requires you to assign copyright, I would suspect that they may plan to exploit your work, and probably make a lot of money from doing that, without your ongoing involvement.

Occasionally the sole point of the competition may be to make money from your copyright. For example, if you submit an image to a T-shirt manufacturer and are told that if you win, your image will be printed onto shirts, then the manufacturer may have a good reason for wanting an assignment of your copyright, or at least a licence of your copyright which ensures they alone can do this with your image (an exclusive licence).

If organisers ask for and need an assignment or exclusive licence, try to ensure that it is limited, so that it only applies to the winning entries. There are competitions out there, where by submitting your entry (even if it is only a preliminary round concept or draft entry from which finalists are chosen) you are required to transfer (assign) your copyright in the work to the organisers.

This means, that even if you don't receive a prize you lose your copyright and the ability to make money in other ways by permitting others to reproduce, distribute, or make certain uses of your work. You have lost the right to make a copy of your work for your portfolio, so if you want to do this you would need to make the copy before you give away the copyright.

You can see how such a wide assignment term could be very profitable for organisers. They perhaps award only first, second and third prizes and in return get hundreds or even thousands of entries to use (including commercially exploit) in any way they like.

Assigning copyright will also restrict an artist's ability to use material in their draft or final work in other ways in the future. In doing work based on a similar concept in the future, the question would be, is the copyright (now owned by the organiser) in that (final or draft) work infringed in the new work? You can, no doubt imagine, the angst that a competition term like this causes creators.

Entrants should query if the copyright arrangements are acceptable to them in the circumstances. Perhaps such a condition is acceptable to you if the assignment or exclusive licence of copyright is limited to prize winning entries and the prizes are considerable?

A non-exclusive licence means you permit someone to use your copyright in a certain way but that you can give this permission to other people as well. It is far less limiting on creators, but still needs careful attention.

A non-exclusive licence clause might say something like, "The organiser can reproduce the submitted work in the exhibition brochure, on the organiser's website and in promotional material for the 2007 competition." In a situation like this, consider if you mind if the organiser uses an image of your work on their website forever. If in 10 years time, unconnected to the competition, the organiser wants your work on their website, are you happy for them to be able to do this without paying a fee?

Ownership of work

The ownership of the physical work is separate from the copyright in it.

Some competition rules may state something like, "All entries become the property of the organiser," in which case the organiser is not going to return your work. Sometimes organisers keep work because they don't want the expense of returning them. Sometimes they plan to sell the work at a later date and make money from the sale.

There are competitions where the entries are sold and the entrant receives a portion of the sale price, once the organiser takes a commission. 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.

Moral rights

The term moral rights has a legal meaning in Australia. The moral rights of creators are the right to be attributed, the right against false attribution and the right of integrity. In short, this means that (subject to specific exceptions) a creator should be named when their work is used and a creator has the right to not have their work treated in a manner that is derogatory or harmful to their honour or reputation.

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."

One of the main drawcards of the competition may be publicity in which case you do not want your work used or exhibited without your name accompanying it. Similarly, it is important to most creators that their work not be altered or placed in a different context in a way that may detrimentally impact their reputation. For example a band entering a song writing competition in which they give the organiser rights to use their music for any purpose, may not want their song used in an advertisement for, let's say, a political party or a charity that they do not support.

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.

It might also be important to an entrant, to have the right to approve the image of them that is used.

Arts Law has seen competition rules that were drafted in a way that gave the organiser the exclusive right to use the name of the entrant. This results in a totally unworkable situation for the entrant, who would not be able to allow anyone else to use their name.

Warranties

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.

The clause may read something like, "The entrant represents and warrants that the work is the entrant's sole original work, the entrant has the power to grant the rights given under it, the entrant has obtained appropriate releases, including location and performer's releases, the entrant is entitled to reproduce and exploit any underlying rights in the work, and the entrant indemnifies the organiser against any loss resulting from breach of these warranties."

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 the. Most organisers, particularly if you become a finalist, will want to see documentation proving that you have the necessary rights. An entrant should make sure that they document any releases or licences from the start. It is a lot harder to go back to someone for permission after you have already done the thing that infringes their rights.

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. For example, the Flickerfest film competition provides that filmmakers pay the costs associated with getting the film to the organisers but that the organisers will pay the return freight cost.

Make sure that you also know who is responsible for insuring your work at different stages. If the organiser's do not insure the work, you need to consider how much you stand to lose if the work is damaged or lost. How would you cope if the work was damaged or destroyed and incapable of being sold when it is returned to you?

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.

If you have other commitments, consider how much notice you need to be able to attend the event, if you are required to. This is very important as sometimes the rules of a competition might state that if you do not attend the award event, you are not entitled to the prize.

If the terms and conditions do not oblige you to be in attendance at an awards night or the showing, performing or exhibiting of your work, consider if you are entitled to attend and at what cost. There is no point being able to enter an event, if the admission price is above your means. It may be that an organiser has not considered this issue and may be willing to insert a term allowing you free entry.

For further information

• See the National Association of Visual Artists code of practice chapter on competitions.
• Contact your industry body eg. the Australian Society of Authors, Australian Writer's Guild, Musicians Union