11 October

Victorian Department of Premier and Cabinet’s Aboriginal Artwork Competition 2016 Review

About Arts Law competition reviews

Arts Law regularly reviews competitions for their terms and conditions dealing with copyright and moral rights, and rates those terms and conditions out of 5 stars. As such, it is a limited review and not a broad review of all terms and conditions including the prize. Entrants should always weigh up Arts Law’s ratings against the prize and possible profile-raising which may result from being a finalist or winner; it may be that a competition with a low star rating awards a wonderful prize! Read more about the rating system.

By accepting the terms and conditions of a competition, artists should be aware that they are entering a legally binding contract.

For more information on competition conditions see our free information sheet. 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.

Review of Victorian Department of Premier and Cabinet’s Aboriginal Artwork Competition 2016

The deadline for this competition is 14 October 2016.

This competition is open to Aboriginal or Torres Strait Islander people residing in Victoria to submit an original artwork. The winning artwork will be used to promote the State of Victoria’s Governance and Sector Support (GSS) Program in return for a $1000 payment to the winner. All entrants will be bound by the Terms and Conditions and the winning artist will need to sign the Licence Agreement  attached to the Terms and Conditions. Arts Law has reviewed and rated both the terms and conditions and the Licence Agreement.

In sum, Arts Law has concerns with both the Terms and Conditions and the Licence Agreement. Notably, while the Licence Agreement does a better job dealing with the artist’s copyright and moral rights, the term of the licence is unnecessarily long and the $1000 payment needs to be seriously considered in light of the licence. The entrants’ Terms and Conditions are concerning including because of the wide breadth of the licence requiring all entrants to allow the use of their artworks to market the competition for an unlimited time and without any acknowledgment or compensation.

The competition’s guidelines, Terms and Conditions and the related Licence Agreement are available at http://www.dpc.vic.gov.au/index.php/aboriginal-affairs/news-and-events-oaav/aboriginal-artwork-competition

The Entrants’ Terms and Conditions

Arts Law has rated these terms and conditions 2.5 out of 5 stars.

Essentially, the Terms and Conditions require all entrants to give Aboriginal Victoria a world-wide licence in perpetuity  to use their entries in marketing material related to the competition. While it is good that the licence is limited in purpose, Arts Law has the following concerns:

  • All entrants must grant this licence. We would prefer the licence only be from the winner or at least finalists.
  • For clarity, it should be expressly stated that this is a non-exclusive licence.  A non-exclusive licence means an entrant can enter the same artwork into other competitions and permit other competition organisers to use the artwork. Further there should be a positive affirmation that the artists will remain the copyright owners of their respective artworks.
  • It should be stated that the licence is clearly for ‘non-commercial’ use. That is, any material on which the artwork is used  cannot be available for sale.
  • The licence should be limited in time. It is unlikely a competition would need to reproduce general entries after a reasonable period of time has passed, for example 5 years.
  • The Terms and Conditions are concerning when it comes to artists’ moral rights. An artist will not be acknowledged when its artwork is used. There is also no provision that the artist’s prior written consent must be obtained before any unreasonable changes are made to the artwork. 
  • In addition to not being acknowledged, artists will not be compensated under this licence.
  • There is a lack of clarity around the physical property in the submissions, which is particularly relevant since entrants can submit actual artworks. In particular there is no provision to return the artworks and no provision around who will own the artwork. Artists  also agree that Aboriginal Victoria will not be liable for any loss or damage. As such, artists preferably should not submit actual physical works for this competition.
  • Incidentally, Aboriginal Victoria can change the terms and conditions at any time but there is no provision that it inform the artists if it does so. 
  • Finally, in accordance with the Australia Council Protocols for working with Indigenous Artists, we note that there are no terms dealing with any Indigenous cultural material in the artworks, including at least that when an artwork appears online that there be an acknowledgment of any Indigenous community rights in respect of the artwork if requested by the artist.

The Licence Agreement to be entered into by the winning artist

Arts Law has rated this Licence Agreement  4 out of 5 stars. (Note this rating does not take into account the $1000 payment to the winner.)

It is a term of the competition that the winning artist must enter into the Licence Agreement attached to the Terms and Conditions. Essentially the Licence Agreement requires the winning artist to give the State of Victoria (acting by and through the Department of Premier and Cabinet in respect of Aboriginal Victoria) (the State), a non-exclusive, world-wide, royalty free licence to reproduce the winning artwork on material for promoting or reinforcing the Governance and Sector Support Program. (Schedule 1 of the Agreement states that this Program aims to continue strengthening governance and sector support of Victorian Aboriginal organisations.)  This amounts to a branding-type purpose (which is how it is described in the Application Guidelines).

It is good that the Licence is non-exclusive, for a limited purpose, and expressly states that the winning artist will retain copyright. Further, unlike the Terms and Conditions, the Licence does a better job of dealing with the artist’s moral rights in so far as it provides that the State, where practicable, will attribute the Artist. The Licence Agreement also deals better with any Indigenous rights in respect of the winning artwork, in that the State when using or displaying the artwork will, if practicable, include any cultural reference if requested by the artist, and not use or display the artwork in a culturally insensitive way.  

Art Law does, however, have the following concerns:

  • The licence is for an unnecessarily long time, namely for the life of copyright in the Artwork. This means for the life of the artist plus 70 years after the artist’s death.
  • In return for the licence, the Artist will be given $1000. We note that the Application Guidelines refer to this $1000 as the ‘prize’. Entrants should be aware that the ‘prize’ as such is one and the same as the fee the winning artist will receive as payment for licensing the winning artwork. Artists should ask themselves whether a one-off payment of $1000 is enough for licensing their artwork to the State of Victoria for the duration of their lifetime and 70 years thereafter, particularly given the artwork will be used for the apparent purpose of branding which could include selling products bearing the artwork.  In our view, this is a very low fee given the extensive usage that could be made of the winning artwork.
  • While the Agreement is for a licence only, and clearly provides that the Artist will remain the sole copyright owner and will be attributed where practicable, it is strange and at odds with clause 5 which provides that the State will use the following wording when using the winning artwork: “Governance and Sector Support Program’ Copyright © 2016….”. This is misleading and should rather read:  “[Artist’s name] © 2016….”
  • Similarly to the Terms and Conditions discussed above, there is no provision that the artist’s prior written consent must be obtained before any unreasonable changes are made to the artwork.  There is also no provision dealing with ownership of the physical winning artwork.
  • While not stated in the Licence Agreement, it is stated in the Application Guidelines that if the winner is not contactable within one week of the announcement of the winning entry the prize will be forfeited and awarded to an alternate winner.  This appears to be rather excessive and it would be more reasonable if this were extended to say 3 weeks. It should also be clearly expressed in the Terms and Conditions rather than in the Application Guidelines.

Further information

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.