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’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 Art Farm Birchs Bay Annual Sculpture Prize (Competition) in Tasmania. Read the terms and conditions of this Competition here.
The deadline for this Competition is 10 September 2021.
Arts Law has rated this Competition 3.5 out of 5 stars.
Arts Law reached out to the organiser with best practice suggestions for their Ts and Cs, however unfortunately they were not in the position to revise their Ts and Cs this year. We are pleased to hear though that they will update their Ts and Cs next year.
This competition is organised by Art Farm Birchs Bay (Art Farm), which is described on the website as a not-for-profit association. The Competition’s website states that this is an annual competition for sculptures varying in mediums, modes and size. Sculptures are exhibited for three months on a permanent sculpture trail at Birchs Bay, south of Hobart, which attracts over 6,000 visitors over the 3 months. We understand that the Competition reflects Art Farm Birchs Bay’s objective to foster engagement between community, art and the landscape.
The Competition is open to artists worldwide who are 18 years of age and over . There is no set theme, and the Competition aims to exhibit diverse work, ranging in mediums, concepts and form. There are two categories – Large Sculptures and Small Sculptures (approx 1m or less in diameter) .
Entrants must enter using the online application form, which includes submission of an 100 word Artist Statement about the work (which will be included in the catalogue displaying the finalists), a CV or short bio, two images or sketches of the entry and two images of other previous work.
Shortlisted sculptures are exhibited from 16 October 2021 to 6 February 2022 on the trail (if large) or around the gallery gardens (if small) at the curator’s discretion in consultation with artist. Note, sculptures must be safe for the public to engage with (structurally sound with adequate installation fixtures) and not harm the environment or produce any litter or permanent changes to the terrain.
In addition to the chance of being selected for the exhibition , the Competition will award over $10,000 in prizes and acquisitions, as well as the opportunity for finalists to list their sculptures for sale to the public. The Acquisition Prize results in sculptures being purchased for the permanent collection of the Art Farm, for year-round display on site.
Copyright and moral rights
The T&Cs are silent on copyright. Although copyright remains with the entrant unless the terms say otherwise, for clarity and as a matter of best practice, the T&Cs should address copyright explicitly. When it comes to the protection of sculptures under copyright law, there is different treatment depending on whether the sculpture is on temporary or permanent public display. Photographs cannot be taken of sculptures which are on temporary public display without the copyright owner’s consent. As the exhibition on the trail and in the gardens is, as we understand it, not permanent but limited to a time period, permission from the artist is required to take photos of the sculptures and also to put these online. Best practice would be for the terms to explicitly say that the sculptors whose works are on temporary display in the trail and in the garden grant a non-commercial, non-exclusive licence to Art Farm for a set period of time to use the photos to promote the prize. It would also be useful to consider appropriate signage for visitors restricting photographs taken by visitors – although sculptors may consider it an opportunity for profile raising if the public can take photographs of their sculptures, and so perhaps the restriction to the public could that there be no photographs by visitors for commercial use. As for works which are purchased by the organiser for its permanent collection (under the acquisition prizes) we understand these will be on permanent public display. Under copyright law, sculptures on permanent public display can be photographed for commercial use, without the copyright owner’s permission. For clarity, it would be helpful if the Ts & Cs expressly set out whether the organiser intends to take photos of sculptures in its permanent public collection and commercialise them – if so, it would be fair for sculptors to get a royalty on such sales.
Turning to moral rights, namely the sculptor’s right to be credited and for their work to be treated with integrity (meaning respectful treatment of their sculptures), the T&Cs are silent on the artist’s right to be credited for their work. Best practice is to include a term that provides a positive obligation on the organiser to attribute an entrant’s work appropriately whenever it is displayed and used. The right to attribute is particularly important as one of the main drawcards of a sculpture competition is publicity for the sculptors.
In respect of an artist’s right to integrity, we are happy to see that the Competition invites artists to consult with the Program Coordinator as to both the placement of their sculpture in the exhibition and as to its permanent relocation if acquired by the Art Farm.
Further, to ensure integrity of the sculptures, we would like to see a term which says that no changes will be made to the sculptures and images of a sculpture should not show the sculpture with any changes to it.
Finally, we would also like to see a term providing the entrants with details regarding the opportunity to collect sculptures which are not sold or acquired as part of the permanent collection.
Prior to entering, we suggest artists consider the following matters:
- Insurance: the T&Cs make it clear that the Art Farm isn’t insured for damage to the sculpture. It is best practice that the Art Farm is responsible for the care of the sculptures while in its possession, care and control and will ensure adequate insurances are in place to protect the sculptures themselves and the visitors to the Art Farm in the event that there any public liability issues associated with an entry arise. Public liability insurance should be specified as being in place.
- Sale of work: the T&Cs should address ownership where a sculpture is sold. We suggest that the T&Cs specify that ownership stays with the artist until the final payment is made by the purchaser and is then transferred to the purchaser. They should also specify that the purchasers will collect the work from the Art Farm after the exhibition is over. If they are to be shipped, the terms should specify that the organisers will pack and ship the work at their expense or this will be billed to the purchaser.
- Commission: we note that commission of 30% is payable on the listed sale price rather than on any negotiated discount to the sale price. We suggest it would be fairer if the discounted sale price was open to agreement between the Art Farm and the artist, and then commission is charged on the agreed sale price, rather than the artist bearing all the reduction in cost to ensure the sale of the work. This is particularly the case as the acquisition price paid by the Art Farm to the artist is reduced by 30% (expressed as the Art Farm’s commission) and it appears that the artist is responsible for installing the work on the site as well as transporting the sculpture to and from the Art Farm.
- Installation and removal of sculptures: artists should be aware that they are responsible for installation and removal of their work within the specified dates, and should ensure they can meet this obligation prior to entry. If support is needed, the artist must organise this with the Art Farm staff with timely notice.
For a higher rating, we would like to see terms addressing the matters set out 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 here Prizes and Competitions.