When an artist creates a work there are a number of rights that instantly accrue to the work. The most commonly known (and perhaps misunderstood) is of course copyright, but it is not the only one. When entering into competitions it is typical for artists to have to accept “Terms and Conditions” for entry. In this post I’d like to discuss what rights you might be signing away by accepting those terms and what to look for in the wording. Let’s be clear about one thing—Terms and Conditions are written by lawyers hired by the organizations mounting the competitions and they really only serve one party—and surprise, it’s generally not the artist.
Copyright vs. Reproduction Rights
Copyright is intended to protect the creator of an original work and their ability to monetize it without unfair competition. In general, though, it’s not realistic for artists to enforce their copyright once violated due to the excessive legal costs of defending it in court when the violator (a large corporation, for example) has much greater financial resources to argue the case. However, that’s no excuse for just signing away that right through accepting the Terms and Conditions of a competition. Without getting into the finer points of copyright law, I’d like to introduce an alternative term that is used in the commercial graphic industry that can illuminate the issue—”reproduction rights”
Think of reproduction rights as Copyright sliced more thinly. A copyright holder can apportion licenses to use their artwork in a dizzyingly granular fashion. For example, you might be okay with your artwork being used on a billboard promoting the art competition you are entering, but not on a t-shirt being sold for-profit by the same company without them paying you royalties. In the advertising industry, agencies often run afoul of this distinction when dealing with inexperienced clients. If an ad agency is engaged by a client to produce a billboard design, then the client may feel entitled to take that artwork and remix it for use as a brochure, or a web banner ad, but that’s not actually the case.
An advertising agency doesn’t typically transfer a blanket copyright to their clients, instead they contract to sell specific reproduction rights to the artwork and associated wording or imagery. The agency retains the copyright to the artwork, and sells usage rights for specific forms of reproduction. If the client wants to only pay to have an advertisement designed, they simply don’t get the rights to expand upon that ad to create materials for a full-blown campaign. If you think about it, it makes sense, the agency who created the ad is in the business of designing materials for all those other tactics and needs to protect their core business. In effect, the client can only make reproductions in the specific manner for which they contracted. I’ve personally seen many agency/client relationships turn sour over disagreements on this point.
This is also similar to how the Stock photography business works. Once again, you can buy licenses to use “royalty-free” imagery for unlimited use, but many images are licensed in a “rights-managed” fashion where the cost to use the image is strictly defined by each use which must purchased separately, on a rated scale, even down to the time-period, geographical region and specific media in which the image is to be used. So, what does this have to do with art competitions?
Signing away all your rights for the chance at the prize
Many corporations hold art contests. Most of these companies have nothing directly to do with art, but nevertheless engage with the artistic community as part of their approach to Corporate Social Responsibility (CSR) to generate goodwill in their communities. There’s nothing inherently wrong with this—in fact it’s a wonderful thing—there’s actually a lot that’s right with it. When entering these competitions, the artist generally must accept the Terms and Conditions supplied as is. Today, I had a link forwarded to me regarding a competition being being held by a company that prompted me to write this article. While they should be applauded for supporting the arts, I’d like to, in the interests of fair use, share an excerpt of their Terms, which in my humble opinion goes too far in asking entrants to sign away their rights, and present some hypothetical scenarios that you may not have considered:
Entrant expressly consents to COMPANY NAME and its affiliates, advertising and promotional agencies, and each of their respective directors, officers, employees, agents, representatives and assigns (collectively, the “COMPANY NAME Parties”) storing, using and disclosing the information submitted or provided by Entrant for any purpose the COMPANY NAME Parties deem appropriate including, without limitation, for administering the Competition. Entrant expressly grants to the COMPANY NAME Parties an unlimited license to use the Entrant’s name, photograph, images of the artwork submitted by Entrant (“Entrant’s Work”) and any related materials, or any part thereof, for any purpose the COMPANY NAME Parties deem appropriate, including, without limitation, in connection with promotion of this Competition, other competitions and for internal or external media, and Entrant waives any claims to royalty, right or remuneration for such use by the COMPANY NAME Parties.
Let’s take this point by point and break it down in plain english:
1. “COMPANY NAME Parties” Let’s be clear about this. By accepting the terms of this competition you are signing away your rights, not just to the company, but to anyone else they would like to share your artwork with—you don’t even know who will be getting the right to reproduce your artwork. Read the first sentence carefully—it’s not only your artwork that’s covered by this—it’s also your contact, or any other information you share with them. Your privacy is lost.
2. “for any purpose the COMPANY NAME Parties deem appropriate including, without limitation” This is the crux of why it seems too heavy-handed to me. The company would like to do whatever they please with your artwork. This means not just for the purposes of promoting the competition, but ANYTHING they feel is appropriate. If they want to use the artwork on their annual report cover—Bingo! If they want to sell the image to another party who wants to put it on t-shirts and mugs—Bingo! If they would like to produce a Stock Photo CD of all of the entrants’ artwork and sell it—Bingo! You have already signed away your say in the matter—it’s whatever the company feels is appropriate, not you.
3. “Entrant waives any claims to royalty, right or remuneration for such use by the COMPANY NAME Parties” Yes, this means what it looks like it does-the only person who wouldn’t have a right to benefit from such “appropriate uses” is YOU, the artist. Keep in mind the market in “reproduction rights” described above. As an artist you should benefit financially from your work. You should retain as many of your rights as posible as the original creator. Keep in mind that these Terms and Conditions don’t just apply to the winners of the competition, but to ALL entrants. Either some lawyers are lazy and don’t want to think too hard about being fair, simply pasting in boilerplate language and doing a search & replace for the company name; or else they are simply oblivious to the nature of the rights they’re asking you to assign to the sponsoring company—a proposition which I seriously doubt.
In no way am I implying that the company involved has any nefarious intent, but be clear that once you sign over your rights, you cannot get them back. The company involved may be completely on the up and up, but don’t forget that they can reassign your rights, and you would never know who may be using your creative, or what they might doing with it. And on that point, let’s discuss a point many artists don’t consider—their moral rights.
Moral Rights and the Artist
Are you familiar with the artist Michael Snow? Well actually, you probably are, he’s the artist who created Flightstop the sculpture of a flock of Canada geese that hangs in Toronto’s Eaton Center. In 1982 he got into a bit of an argument with them regarding his moral rights. Apparently, in honour of the Christmas Season in 1981, the Eaton Center thought it would be a wonderful idea to tie ribbons around the necks of the geese—how festive—but Michael Snow rightly objected to this and demanded the ribbons be removed because they violated his moral rights to the artwork—in fact, he had to take the Eaton Center to court to defend his rights when they refused, claiming that as the owners of the artwork they could do whatever they wanted with it.
Essentially, by amending Snow’s artwork, the Eaton Center changed it to mean something else, cheapening it in the eyes of the artist. It’s analogous to a situation where you purchase a painting, take it home, and draw a moustache on it—it’s tasteless, tacky and is a violation of the artist’s vision. The Ontario High Court of Justice agreed—Michael Snow won his lawsuit—and the ribbons cannot reappear.
The Terms quoted above could arguably extend to your moral rights. It’s the same in the Stock Photo business where licensing terms often contain language like this (excerpted from istockphoto.com‘s license agreement):
Cannot use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself
See what they did there? That’s a clearly worded defence of their moral rights. Consider this, even someone who purchases an artwork from you only owns the object itself, not the rights to it’s image, and cannot sell reproductions or alter it without violating your rights.
Here’s a hypothetical
Let’s say you’re a landscape painter and the art competition you wanted to enter was run by an open pit mining company. Now, despite what they say in their brochure about their commitment to sustainability and the environment let’s suppose, for the sake of argument, that like most mineral extraction processes, their company cannot help but stealthily destroy a part of the environment through the release of toxic chemicals such as arsenic, mercury, or sulphuric acid into the water table—or more obviously by blowing the tops off mountains and digging holes big enough to be pretty obvious when seen from space. Of course, to get at the mystery mineral they’re extracting at 1PPM, they will have to remove significant overburden, and in the process generate waste on the order of tonnes per gram of final product. (Full disclosure: the computer I’m writing this on not only contains this product—it requires it to function—believe me I do appreciate the irony.)
Now, you might object in general to business models of this type and yet easily be unaware of the specific realities of what’s going on. In fact, what if the company in question had even been implicated in a federal court case, through it’s part-ownership of a mining company in Argentina, let’s say, for “irremediable” “crimes against the environment.” What then, eh?
How would you feel if one day you saw your artwork in a billboard ad extolling the virtues of that mineral, re-engineered into a luxury product that sold for exorbitant sums of money and you didn’t get paid for it? How would you feel that by extension you were assumed to be contributing to the degradation of the environment as an enabler via such advertising because you signed away your reproduction and moral rights to your artwork? Pretty bad huh? Once again. Let me reiterate, this is all just hypothetical.
What if it got worse? How could it possibly? What if the buck didn’t stop with them? Imagine a third party advertising agency they transferred the rights to also did work for the novelty products industry and your artwork ended up on silly trade-show swag with the slogan “Not just wrecking the environment—now we’re strip mining artwork for fun & profit too!” Or, heaven forbid, your artwork was used as a composited backdrop for a pornographic photoshoot? It’s not so crazy—stock photo licenses, such as the one quoted above, often contain clauses limiting derivative works and which also prevent licensees from using imagery in a sexualized manner—it’s standard practice. It’s a sad fact that once you give up your rights, there’s no telling what can happen to your artwork.
What can be done?
Well, for one, you don’t have to sign any contract that doesn’t benefit you—you don’t have to be complicit. Period. End of story.
Secondly, you can write to companies holding these competitions to express your concern regarding the Terms and Conditions and politely explain that there’s a better, more fair way to run these things. You can stand up for your rights instead of signing them away.
Lastly, commit to the concept of copyleft and support initiatives such as Creative Commons licensing. Educate yourself on what rights you have, and encourage organizations that you deal with to do the same.
A better way
In closing, I’d like to suggest there is a better way. Similar to the issues surrounding charitable calls for submission Terms and Conditions for contests can be worded in ways that respect the rights of the artist, only assign the rights necessary to conduct the competition, and provide for appropriate compensation for ancillary uses of the artwork. While I realize that lawyers cost a lot of money, a company that can afford to pay thousands of dollars in awards to the winners can surely afford the few extra hours it would take to draft a more sensible and fair legal framework.
So, next time you see a call for submission—and get excited by the size of the golden carrot dangled in front of you—ask yourself if the terms and conditions benefit you, or merely strip you of your rights and fair compensation for your work. Is the exposure really worth it? Are the terms fair to you as an artist? Ultimately, it is up to you to weigh the (small) chance of a reward against the benefits you’re handing to the company sponsoring the contest. A lot of the time, I’ll wager that the balance comes up short.