Arts Law regularly reviews the terms and conditions of competitions and rates them out of five https://www.artslaw.com.au/wp-content/uploads/2019/02/Star.pngs. 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’s rated out of five https://www.artslaw.com.au/wp-content/uploads/2019/02/Star.pngs 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 https://www.artslaw.com.au/wp-content/uploads/2019/02/Star.pngs 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 Moran Contemporary Photographic Prize 2019 which is a national photography prize out of NSW organised by the Moran Arts Foundation (MAF). Details about the competition can be read here and the General Terms and Conditions of Entry are here.
The deadline for this competition is 6 March 2019. The competition is open to all Australian citizens and photographers, resident in Australia since 6 March 2018.
Arts Law has rated this competition 4 out of 5 https://www.artslaw.com.au/wp-content/uploads/2019/02/Star.pngs.
This is an acquisitive prize and exhibition that awards and promotes Australian contemporary photography and excellence in all forms of still, photo based artwork – including analogue and digital photography or staged and directorial photo-media work.
The competition brief invites photographers to tell a story of how they experience living in Australia; places, people and lifestyle that make our lovable country quintessentially Australian. It may be a landscape, portrait or action shot.
The prizes are good, especially for the winner, as well as being profile-raising. Thirty finalists (selected from a shortlist of semi-finalists) each receive A$1,000. The winner gets a very generous A$50,000 – it is an acquisitive cash prize, the winning work becoming the property of MAF. In terms of profile-raising, semi-finalists are published on the MAF’s website, and finalists are exhibited at the 2019 Moran Contemporary Photographic Prize Finalist Exhibition at the Juniper Gallery in Sydney. Entrants should note that finalists’ works may also be exhibited up until as late as December 2020 in a travelling exhibition.
So how is copyright dealt with in this competition? It is excellent that all entrants retain copyright in their works. Both semi-finalists and finalists are required to give certain copyright licences, as follows.
The Finalist is required to ‘assign’ a non-exclusive and irrevocable licence in the photograph to MAF, throughout the world. It is great that it is non-exclusive (in that the winner is free to license elsewhere). However, the licence is not limited in time, nor in purpose. Regarding length of time, given that MAF actually acquires the photo, then it probably makes sense that it can use it without a time limitation. However, there should be parameters around what it can reproduce the photo for. Best practice would be to include a term to say MAF can only use the photo to promote the prize and MAF, and such use should be ‘non-commercial’. Note, the finalist has to sign an agreement to give effect to this licence, however it is not attached and so it is unclear what exactly will be in the further agreement and whether it will address these issues identified.
As for semi-finalists, they have to grant a broad licence to MAF and its touring partners and sponsors – it is non-exclusive, perpetual, irrevocable, worldwide and royalty free for the advertising and promotion of the Moran Prize and MAF itself, in any form of media. It is good that this licence is also restricted to being non-exclusive, and that it is limited to advertising and promotion purposes. However, entrants should note that the licence runs forever and is not limited to ‘non-commercial’ purposes, which is unfair given that it is a royalty-free licence. Theoretically, then, a semi -finalist’s work could be used on an item which promotes MAF but is for sale. Best practice is to limit licences to a period of time that MAF would reasonably and realistically require to reproduce the images (e.g. five years) and expressly state where the images will be used (e.g. online, print). It should also be clearly stated that the licence is only for ‘non-commercial purposes’. Further, the terms should name the people and organisations who are entitled to rely upon this licence. Entrants will need to consider whether they are happy for images of their works to be used for an unlimited period, potentially for commercial purposes. On the other hand, entrants should weigh this up against the potential publicity and exposure, provided of course that they are credited.
Turning to moral rights, disappointingly the terms and conditions are silent. Under the Copyright Act, artists have certain moral rights including the right to be attributed for their work, and to control any changes to their work which could harm their artistic integrity. Best practice would be to positively affirm these rights in the terms. To make them more artist friendly, there could be a positive undertaking to always credit the artists when their works are displayed and used under the licence they are giving. There should also be a positive obligation in the terms that the entrant’s permission must first be sought in respect of any changes to their artwork that would affect their artistic integrity, or at least in respect of any changes which are not reasonable. As stated above, so long as artists are always credited, then the licences could be seen as acceptable if profile raising.
Other than that, entrants should be aware of some other key terms affecting liability. If an artwork is selected for the award and exhibition, then artist will be liable for the transport of the artwork to the Juniper Gallery and the artist should maintain the necessary insurances to manage the risk to the artwork during this period. Unfortunately, the Gallery, does not take responsibility for the works while they are in its possession and control and require the artist will insure the works against loss or damage for the competition period, handling, judging exhibition period and storage. Best practice would normally involve the Gallery taking responsibility of and insuring the physical works while in its possession, care and control. Further, it is unclear whether this applies to the touring exhibition which could require the artist to manage these insurances up to 31 December 2020.
Overall, while we would prefer to see recognition of moral rights and the licence from the winner limited in purpose, taking into account the excellent A$50,000 first prize and good cash prizes for thirty semi-finalists, plus any publicity and exposure, we have given a 4 https://www.artslaw.com.au/wp-content/uploads/2019/02/Star.png rating.
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.