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 yapang Emerging Art Prize 2021 organised by the Museum of Art and Culture (MAC) yapang, Lake Macquarie City Council (“the Organiser”) in New South Wales. Read the terms and conditions of this competition here.
The competition’s website states that it is “an acquisitive art prize developed to celebrate, promote and support emerging Aboriginal and Torres Strait Islander artists from across the country” and that “the biennial prize will be showcased with a finalist exhibition at the Museum of Art and Culture yapang on Awabakal Country in Lake Macquarie NSW.”
The deadline for this competition is 22 October 2021
Arts Law has rated this competition 4 out of 5 stars.
Arts Law contacted the Organiser of this competition to suggest ways it could improve its terms and conditions to make them as artist friendly as possible. The Organiser was keen to hear our suggestions and subsequently made changes to the terms and conditions to reflect a number of those suggestions. Entries are open to emerging artists who identify as Aboriginal or Torres Strait Islander and are over 18 years old. To qualify as an “emerging artist” you must have practised as a professional artist for less than five years.
Entries can be in any medium on the theme of “artwork that showcases your practice”. There are specifications for entries, including around the date of creation of the works (between 22 October 2020 – 22 October 2021) and that entries must not have been exhibited and awarded in another art prize.
The prizes are described as follows:
- Acquisitive Prizes: the Organiser and Create NSW have committed $15,000 to enable the MAC yapang to purchase the winning and any additional highly commended artworks at the reasonable price set by the artist (until funds are exhausted). It is not stated how the $15,000 will be split among winners of the acquisitive prizes, nor how many acquisitive prize winners will be chosen.
- People’s Choice Award: a $1,000 prize for the artwork with the highest number of audience votes over the period of the finalist exhibition.
- Highly Commended Awards: NAVA premium plus membership to the value of $280 each.
- Workshops: selected finalists who are chosen for the finalist exhibition will be invited to participate in a mentorship workshop with established Aboriginal or Torres Strait Islander Artists or Arts Organisations on how to price and market your work and protect your intellectual property.
Finalists’ works will be shown in the exhibition (from 4 December 2021 to 20 February 2022).
An artist’s copyright is their exclusive right to use their work. That’s why competition terms usually require that an entrant grant permission to the organiser to make copies of their entries (known as a ‘copyright licence’).
We are pleased to say that this competition has good, artist-friendly copyright terms.
Under the terms, each finalist allows the Organiser to reproduce their work and communicate it to the public for 2 years for prize-related purposes (including publicity, educational, marketing and publication for the MAC yapang) and anything incidental to such purposes (including visitor social media use) in all media. It is good to see that there are appropriate restrictions on this licence, in that it is limited for prize-related purposes and for a set period of time (up to 2 years). While the purpose does include incidental purposes such as social media use (this might include a visitor photographing a work in the exhibition), we are pleased to see that the Organiser has given finalists the option of requesting that their work not be photographed at the exhibition.
We also like that the licence is limited to finalists (rather than all entrants), that it is non-exclusive (meaning that a finalist is free to allow others to use their work) and non-commercial (which means that the Organiser cannot, for example, put the images of the artworks on merchandise for sale).
In addition to this licence, finalists grant the Organiser a perpetual licence for archival purposes. This is reasonable.
If you become a winner of the acquisitive prize or a highly commended acquisition, there is a different licence that you grant to the Organiser – it is still a non-commercial licence for prize-related purposes and for the purpose of promoting the “MAC yapang” collection, but it is forever (not just 2 years). Also, importantly, it is a ‘sole’ licence, meaning only the Organiser and you can use your work. So, you can’t let anyone else make copies of your work. This is all reasonable given that the Organiser has acquired your work and may therefore want to make copies of it in the future.
Moral rights and Indigenous Cultural and Intellectual Property
We are really thrilled that the competition deals respectfully with artists’ moral rights. These are your rights to be credited and to integrity (meaning your right for no derogatory treatment of your work, for example, no changes made to your work or uses of it that affect your honour or reputation).
Here, the Organiser has committed to always attributing the artist of a work. The organiser has also undertaken to treating an entrant’s work with integrity, and not making any changes or alterations to an entrant’s work (or their statement and bio) without prior written consent.
We are always pleased to see terms which treat Indigenous Cultural and Intellectual Property respectfully. Here, the terms are commendable. The Organiser has committed to not displaying or using any work in a context that might be considered by an Aboriginal or Torres Strait Islander community to be offensive, inappropriate, derogatory or degrading and will make cultural attributions with respect to works as notified by entrants.
There are a number of prizes on offer which is great. However, the wording of the acquisitive prizes for this competition does not clearly state how much each acquisitive prize winner will receive – rather, the Organiser has committed $15,000 to acquire the winning artwork and any additional highly commended artworks at the reasonable price set by the artist. It is not specified how many highly commended artworks will be acquired in addition to the winner, and so it is ambiguous how much money will remain for those acquisitions. We think this aspect of the terms and conditions could be improved.
Entrants should note that there are some attendance and availability requirements for the finalists. Where reasonable, finalists are required to make themselves available for “marketing and media opportunities in relation to [the competition] and its finalist exhibition” if given reasonable notice by the Organiser. These are reasonable requirements for a finalist and undoubtedly profile-raising opportunities.
We are glad that the Organiser has committed to cover insurance while the work is in its possession, care or control, and that condition reports will be carried out when works are received and before they are returned. Note that finalists are responsible for transit insurance (when the work is travelling to the Organiser and back to the artist if it is not acquired), which is reasonable. The Organiser has committed to returning the works to finalists at the conclusion of the exhibition.
Entrants should note that if their work is selected as a finalist then it must be available for loan and display between 22 November 2021 and 27 February 2022. Finalists get to set the sale price of the work (which should include GST if you’re registered for GST). Entrants should be aware that if chosen for the acquisitive prize or a highly commended prize, their work will be acquired by the Organiser for its MAC yapang collection. It’s good to see that the Organiser will not take commission for that. If you make it into the exhibition as a finalist, but you are not a winner, your work will be available for sale to the public. (Note however, if you don’t want a third party to purchase your work, the terms allow you to specify that.) Where a work is sold to a third party during the exhibition, the Organisers will take a 25% commission (excluding GST), and the artist will receive payment within one month of the conclusion of the exhibition. It’s a pity that there is no term setting out how commission will be split if an artist is represented by another commercial gallery – then again, entrants can always opt out of making their work available for sale to third parties.
When we contacted the Organisers out of the blue with comments on how to revise their terms to make them as artist-friendly as possible, they were engaged and moved quickly to revise their terms. The way the terms deal with copyright, moral rights and Indigenous Cultural and Intellectual Property is excellent and shows best practice. If it wasn’t for the lack of clarity over the distribution of the $15,000 among the acquisitive prize and the highly commended prizes, we would have given this a perfect rating, however, for now we have rated this competition 4 stars.
Overall, we commend the prize for its respectful treatment of artists. The exhibition of finalists’ work is a wonderful profile-raising opportunity for Aboriginal and Torres Strait Islander emerging artists in particular.
We suggest that entrants read the terms and conditions for any further requirements.
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.