Arts Law regularly reviews the terms and conditions (T&Cs) 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’s rated out of five stars only the terms of a competition which dealt with copyright and moral rights. 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. For more information see our website.
This month, Arts Law has reviewed the terms and conditions of the Portia Geach Memorial Award (Competition) in Australia. Read the terms and conditions of this competition here.
The deadline for this Competition is midnight, Tuesday 31 August 2021.
Arts Law has rated this competition 3 out of 5 stars.
Arts Law has made suggestions to the Trustee of the Award to make this Competition’s T&Cs more artist friendly, and they are reviewing these suggestions but the T&Cs have not yet been changed.
Run by the S.H. Ervin Galley in Sydney (Gallery) on behalf of Perpetual, the Trustee of the Award (Trustee), the Portia Geach Memorial Award is awarded annually for the entry of the highest artistic merit, “… for the best portraits painted from life of some man or woman distinguished in Art, Letters or the Sciences by any female artist resident in Australia during the twelve months preceding the closing date for entries”.
Advertised as “Australia’s most prestigious art prize for portraiture by women artists”, we understand that the Competition is intended as a legacy to Australian artist Portia Geach, to ensure “…women artists in Australia are encouraged and supported in their endeavours“.
Entries are open to female artists who are either Australian citizens or British born and have been resident in Australia during the twelve months preceding 31st August 2021 (Applicants).
Applicants are required to paint a portrait, from life, of some man or woman distinguished in Art, Letters or the Sciences, with self-portraits allowed (Portrait). The sitter of the Portrait must be known to the artist and aware of the artist’s intention and have had at least one ‘sitting’ with the artist for the Portrait. From the sitting, the artist is allowed to take photographs of their subject which they can refer to in the completion of their works.
The Portrait must be:
- an original work and must not infringe copyright;
- executed entirely during the year commencing 1 September 2020;
- completed by the date of submission;
- two-dimensional and use the medium of paint (sculpture, photographic and video works are not eligible); and
- a maximum size of 210cm high by 300cm wide.
Applicants are not required to send in their Portraits for the initial judging, as selection will be completed from digital images of the Portrait. Only Portraits selected for exhibition (Finalist Portraits) will need to be sent.
Applicants must complete the online application (here) which must include (Application):
- a completed online application form, including confirming the T&Cs;
- a JPEG image of their Portrait;
- an artistic statement (maximum of 200 words);
- a copy of their one page (A4) CV/ biography;
- a completed “Sitter Statement Form” signed by their subject;
- a $50.00 administration fee for their entry.
An Applicant may enter as many times as they like, but each entry must have a separate application and online payment.
The Judges will select Finalist Portraits for exhibition at the Portia Geach Memorial Award exhibition at the S.H. Ervin Gallery, Sydney, which will run from 14 October – 28 November 2021 (Portia Geach Exhibition). Applicants will be advised of their selection by email and informed of next steps, including transportation and timing information, as Finalist Portraits must be delivered to the nominated collection point pre-Exhibition.
The Finalist Portrait the judges consider has the “highest artistic merit” will be selected as the winning entry (Winner) and receive the cash prize of $30,000.00. The Winner will be announced at the Portia Geach Exhibition’s official opening.
So how do the terms deal with copyright? Unfortunately, the T&Cs do not address copyright well. For starters, although the granting of a licence implies that copyright remains with Applicants, the T&Cs do not expressly state this.
However, it is good to see that Applicant’s only grant the Trustee and its agent a “general” licence (as opposed to an “exclusive” licence) as this means that Applicants may licence their work to others. The licence is granted to:
“reproduce any material or entry/ies by electronic or print media or on television leading up to, or for the duration of the exhibition, and thereafter, to further advertise and in other ways publicise the Portia Geach Memorial Award, and any other arts scholarships/awards in its portfolio … [and] … Artworks may also be exhibited at sponsors’ premises, if any, for a limited time”.
As Finalist Portraits are selected for exhibition, a licence for publicity and exhibition seems fair. However, we are disappointed that:
- all Applicants (not just Finalists) are required to grant the licence – it would be fairer if only Finalists were required to grant the licence as they receive the benefit of exhibition/winning, whereas non-finalists receive no benefit and therefore are “giving something for nothing” by granting the licence; and
- the licence is granted in respect of “any material or entry/ies”, as this means any part of the Application may be used for publicity or promotion – although we think it unlikely that the Trustee would use other aspects of the Application (eg an Applicant’s CV), we would prefer to see the licence apply only to the Portrait.
Applicants should also be aware that the Trustee has a right to exhibit “a selection of entries, including the winning entry, for a period following the announcement of the award“. This right is separate to hanging at the Portia Geach Exhibition. We would prefer the T&Cs specify that any exhibition by the Trustee will not interfere with hanging at the Portia Geach Exhibition, as other than the cash prize awarded to the winner, this is the prize for non-winning Finalists.
In addition to an artist’s copyright in their artwork, an artist also has moral rights in respect of their artwork. Moral rights include the artist’s right to be credited, and the right to have their artwork treated with integrity, meaning no derogatory treatment of their artwork eg alterations to the artwork.
The T&Cs are silent as to moral rights, and don’t directly acknowledgeincluding the artist’s right to be credited for their work and the right to have their artwork treated with integrity. Although the Trustee is obliged to respect the Applicants’ moral rights whether or not they undertake to do so in the T&Cs, best practice is to deal explicitly with moral rights. In this regard, we would like to see the Trustee provide a positive obligation to attribute Applicants’ work appropriately wherever the Application or Finalist Portrait is used. This right to attribution is particularly important as one of the main drawcards of this competition for Finalists is publicity (so correct attribution is vital!).
Other things to consider
In respect of the transport of Finalist Portraits, we are disappointed to see that the T&Cs do not cover who is responsible for organising and covering the cost of freight. It is therefore important that artists factor in the cost of potential freight to and from the Gallery when deciding to enter.
In respect of collection of Finalist Portraits, we are glad to see that the T&Cs specify that Portraits are to be collected from the nominated collection point between 29-30 November 2021. However, we would like to see a further commitment to either returning or destroying Portraits if they are not collected, especially as there is only a two day window for collection which seems unfair in the circumstances of an Australia wide competition. In light of this, Finalists should ensure prompt collection.
Artists should also note that although the Trustee commits to taking “reasonable care” of Portraits, it takes no responsibility for “any loss or damage whatsoever or howsoever caused to any entry in their possession and custody”, regardless of whether reasonable case was taken or not. This is disappointing, especially considering the Trustee does not provide insurance for Finalist Portraits in its care, custody or control (including storage, handling and display). In light of this, artists should make sure they have insurance in place to cover their Portraits.
To improve their rating, the Competition should consider amending the T&Cs as suggested 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.