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 Maari Ma Indigenous Art Awards 2019 in New South Wales.
The deadline for this competition is 19 February 2019 and entries are open to artists of Aboriginal or Torres Strait Islander descent who are current residents in the Western Region of New South Wales, including the towns and communities of Broken Hill, Tibooburra, Wilcannia, Menindee, Ivanhoe, Pooncarie, White Cliffs, Dareton and Wentworth.
Read the terms and conditions of this competition here.
Arts Law has rated this competition 3 out of 5 stars.
Previously known as the Far West Aboriginal and Torres Strait Islander Art Prize, this is an annual competition for Indigenous artists resident in western New South Wales. The entry form states that ‘[t]he aim of the prize is to provide an opportunity to showcase and celebrate art works and creativity in the Far West by Aboriginal and Torres Strait Islander artists.’
There are two award categories and four prizes. First, the Open Award category offers a first prize of $3,000 and a second prize of $1,000 for 2- and 3-dimensional works on any theme, in any medium, including painting, drawing, sculpture, photography, film and installation works. Second, the Young Artist Award category (open to artists up to 18 years of age) offers the prize of an art pack to the value of $500. Finally, there is an encouragement award of $1,000. Works entered into either category are eligible for the encouragement award.
This appears to be a non-acquisitive art prize, in which entries may be offered for sale in an associated exhibition at the Broken Hill Regional Art Gallery between 1 March and 5 May 2019 (it is unclear whether all works must be available for the duration of the exhibition, or just selected works).
Several prizes and an opportunity for exposure for Aboriginal and Torres Strait Islander artists in the Far West are on offer. However, the terms of entry do not go into enough detail about the copyright licence that is granted by entrants to Broken Hill Regional Art Gallery and West Darling Arts Inc., and the licence is granted by all entrants, not just finalists or winners. Further, the moral rights of entrants are not discussed at all.
Regarding copyright, the conditions of entry essentially seek a copyright licence from entrants to reproduce their artworks: ‘Entry will grant Broken Hill Regional Art Gallery and West Darling Arts Inc. Permission to reproduce artworks entered in the Maari Ma Indigenous Art Awards for non-commercial purposes such as use on our website, promotional brochures and in the media’. While it is good that this licence is limited to non-commercial purposes, and it is clear who is allowed to reproduce the artworks, some further clarification would be helpful. Does the licence go on forever? Is it clearly non-exclusive? Noting the examples given in the terms, how far could ‘non-commercial purposes’ go?
Best practice for a licence to reproduce artworks for promotional purposes is that it should only be given by the winners or finalists, but not all entrants (although all entrants might be expected to give a licence for taking photographs of their works for gallery records). The licence should be limited in time, and it should be clearly stated that it is non-exclusive so that artists may still licence the reproduction of their artworks to other parties during the period of the licence. It would also be good to spell out that the ‘non-commercial purposes’ for which the artworks may be reproduced are limited to promoting the exhibition and/or the competition and/or the competition organisers. Finally, it should be expressly stated that copyright in all works is retained by entrants.
Moral rights comprise an artist’s right to be credited properly, and that there be no changes to or mistreatment of their work without their consent. The terms and conditions are silent on entrants’ moral rights. In reality, it is probably assumed that artists will be credited whenever their work is used (and Arts Law notes with approval that the image used on the front of the Award entry form appears to be credited in the text of the form). However, it would be best practice to include a statement in the terms and conditions that artists will always be credited whenever their work is displayed or reproduced. It would also be good to include a term that confirms there will be no changes made to artworks if they are reproduced (for example, if they are used in online promotional material) unless the artist’s consent is obtained first.
The terms state that works ‘may be offered for sale’ during the exhibition, and sale prices must be calculated by entrants to include a 33% commission (presumably to the Broken Hill Regional Art Gallery), which is fair. However, it would be good if the terms included some more details about how exhibition sales will work, particularly when and how artists will be paid if a sale is made. Finally, the terms state that the Gallery accepts no liability for loss or damage to works while they are in its custody. This is not fair and best practice would be for the Gallery to accept responsibility while works are in its custody.
While this competition offers some good prizes and a profile-raising opportunity for artists, the Awards could have achieved a higher rating from Arts Law if the terms and conditions went further to clarify the rights of entrants, particularly the copyright and moral rights issues discussed 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.