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 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 Folk Federation of Tasmania’s Song and Tune Writing Awards. The entry form states the awards are “for an original song or tune in traditional or contemporary folk style” and are made “to encourage creative music writing in Tasmania”. The deadline for this competition is Friday, 2nd October 2020. It is a competition open to residents of Tasmania.
Read the terms and conditions of this competition here.
Arts Law has rated this competition 3.5 out of 5 stars.
Arts Law reached out to the Folk Federation of Tasmania (FFT) to suggest ways their terms and conditions could be improved to make them more artist friendly, in particular by dealing with copyright and moral rights. We were really pleased that FFT was willing to listen to our suggestions and subsequently revised its terms and conditions.
This is an annual competition for songwriters, where each entrant creates and submits an original song or tune for judging. Regarding eligibility, as the entry form says, the song or tune must ‘fit comfortably in the “folk genre”’ and “generally this means acoustic pieces”. There is a preference for simple arrangements (eg. guitar/instrument plus vocal) and Tasmanian themes are strongly encouraged. Entries must be composed by a resident of Tasmania, and suitable for live performance.
There are four awards on offer, as follows, which will be announced at an awards concert on 7 November 2020 (subject to coronavirus restrictions):
· Mike Silverwood Memorial Song Writing Award – $250
· Instrumental (Tune) Award – $250
· Under 19 Song or Instrumental Award – two prizes of $200 each
· People’s Choice Award – $100 – decided at the concert.
Entrants are encouraged to perform at the concert, and can select a performer of their choice.
It is great that FFT took on board our suggestion to address copyright of the entrants, and they have done this in a fair way. The terms explicitly state that the copyright in the entries remains with the artists, and there is no transfer of copyright to FFT. All entrants grant a licence to FFT to play ‘entries or recordings of the awards concert on radio to publicise the awards.’ Later in the terms it is stated that ‘recordings submitted may only be used the Organiser for promotional purposes in accordance with these Terms and Conditions’. It is good that FFT can only use the entries for the specified purpose of publicising/promoting the awards, as opposed to some open-ended use. Further, if an entrant is not willing to grant this licence, they can opt out.
This is all good. It would be even better to explicitly state that it is a non-commercial licence (to make clear that no sales could be made of the recordings). We note that this licence is forever – best practice is to have licences limited to a set period of time, being the time period the organiser would reasonably need to use the recordings. That said, an entrant may not mind that their recording is being used as it is no doubt profile raising. Given that, as a non-exclusive licence, it is less of an issue, as the entrants are not locked out forever from using their submitted recordings. We also prefer to see licences that are only required from the finalists or winners, and not from the non-winning entrants.
Importantly, the concert performances will be recorded, presumably by sound recording (if also audio-visually recorded, then that should be stated). In addition to copyright existing in music and lyrics, copyright also exists in a sound recording. It is not clear who will own the copyright in the sound recordings. This should be explicitly spelt out. Generally, if it is an uncommissioned sound recording, the default position is that the copyright in the sound recording of a live performance will be shared by the performer(s) and the owner of the medium on which the recording is made. This means that if the composer/entrant is not performing, they will not own copyright in the sound recording. If however the sound recording is commissioned (which is probably not the case here), then the commissioning party will own the copyright in the sound recording. These default positions may be changed through the Ts and Cs.
Under the law, an author has moral rights including the right to be credited for their work and for their work to be used in a way that doesn’t affect their integrity, unless permission is first obtained. That is, there can be no derogatory treatment of their work (eg no changes to their work, or uses of it, which affects their artistic integrity). These moral rights also apply to performers, which means they need to be attributed when performing live and on any sound recordings of their live performances, and such performances and sound recordings can’t be treated in such a way that effects their artistic integrity (eg distorted recording).
We were pleased to see that FFT revised the terms and conditions to address the moral right of attribution, by stating that FFT will attribute the author of the song/tune in any public performance of the work. While this is excellent, it would be better to extend this undertaking to attribute to “whenever the recording is used”. The terms do not specifically mention attributing the lyricist (which is particularly important if it is a different person to the composer), nor do they mention attributing performers.
We would also like to see terms addressing the moral right of integrity. In this regard, the entrants (especially if they are also the performer) should have some overview/control of the recordings made at the concert, to ensure they are happy with the quality (which goes to their right of integrity) – particularly if it is the concert recordings which will be used for publicity purposes. This does not matter so much for the recordings submitted by the entrants, as it is unlikely that FFT would need to change those recordings.
Other things to consider
The terms and conditions rightly require the entrant to be the songwriter and the copyright owner of the work. If the entrant has co-written the work with another person, the entrant must obtain written permission to enter the work in this competition. Don’t forget to also get the written permission of any lyricist.
It is important to note that the recordings submitted to FFT will not be returned to the entrants and will become property of FFT. While we would rather see a commitment to returning the recordings to the entrants, or a statement saying they will be destroyed once the awards are over, it is probably not an issue here as the entrant can always opt out of the recordings being used.
The process culminates in a concert in Fern Tree, Tasmania where the winners will be announced. Whilst entrants are encouraged to perform their song at this concert, it is not compulsory. If you choose to perform or attend the concert, it is at your own cost. FFT may be able to assist by finding billets if the entrant contacts them in advance. Although it is not stated explicitly, we assume that if an entrant chooses not to have their work performed at the concert, they would not be eligible for the People’s Choice award. But what happens if the entrant cannot attend? Is their prize forfeited? Also, what happens if the concert does not go ahead because of the Coronavirus pandemic?
The entrant does not have to perform the work themselves. They may engage a performer to perform on their entry sound recording, and/or the final concert, but note the potential copyright ownership implications of this in the sound recording, as described above.
Overall, this is a good community competition for songwriters interested in the folk genre, with the chance of some prize money and gaining some exposure. Entrants should make sure they are aware of all the terms they are signing up to before entering.
Arts Law was pleased with FFT updating its terms and conditions to deal with the entrant’s copyright and moral right of attribution, however for a perfect rating the matters raised above would need to be addressed. FFT has indicated to us that given the time constraints, and being a small organisation, there wasn’t enough time to address these matters, but FFT has stated that it is committed to protecting artists’ rights and will take them on board for next time.
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 of our website.