The Business of Photography

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The Business of Photography

Problems With Photo Competition Rules

Government policy is interesting! On the one hand, government is so concerned about copyright and moral rights, it introduced legislation to protect us from large corporations (and others) throwing their weight around. On the other hand, that same government turns around and effectively ‘steals’ copyright and moral rights from the Australian public.
 
Strong words? Not if you read the terms and conditions in Tourism Australia’s current “There’s Nothing Like Australia Promotion” competition. There is a host of issues surrounding TA’s competition rules, but it boils down to this: just by entering the competition, even if you don’t win a prize, your photograph can be used by Tourism Australia or sold to someone else without your permission.

For many people, entering their photographs in a competition might not seem a big deal, but as professional photographers, we need to understand what is happening, how it is affecting our business and, importantly, how our clients perceive the value of photography.
 

The Competition Aim

Tourism Australia has a wonderful idea: engage Australians to promote their country to the world.
 
Undoubtedly the promotion will collect some wonderful stories and photographs that can be used for advertising and promotional purposes. Some will need to be re-shot and re-written to professional standards, but the ideas bank could be second to none.

But here’s where it gets murky. The act of entering your photograph into this competition means you give away your right to use the photograph forever.
 
Legally, you would have no further right to use or print your entry, or take other photos that copy it!

Fine Print

The rules in Tourism Australia’s competition state (the following is edited, but you can view the full rules yourself at www.nothinglikeaustralia.com):
 
11. By entering the Promotion, Eligible Entrants absolutely and unconditionally assign ... to the Promoter all right, title and interest in all intellectual property rights in their entry, including ownership of intellectual property rights in any photograph that forms part of an entry.
12. By entering the Promotion, Eligible Entrants acknowledge that their entry may be used by the Promoter ... or any other third party nominated by the Promoter, for the Promoter’s current and future promotional and marketing purposes without further reference or compensation to them. Eligible Entrants unconditionally and irrevocably:
(a) consent to any act or omission that would otherwise infringe any of their moral rights in their entry ...

 

Let’s look at two scenarios. First, if Tourism Australia gives a $25,000 prize to the winner, it wants to be sure it can use the winning material to promote Australia. Fair enough, but this right can be obtained without the harsh control inflicted by its current rules. Admittedly, a lot of professional photographers would accept payment of $25,000 (even as a contra) in return for the buyout (sale of copyright) of one of their images. Not everyone would agree with this policy, but Tourism Australia could be forgiven for applying these terms to the major prize winner.
 
For the minor prize winners, the value of the prize appears to be $5570, so again there is an exchange of value between the entrant and Tourism Australia. Still, Tourism Australia could get what it needs without owning copyright (just obtain a licence) and it could build far more goodwill by adhering to the moral rights adopted by Australia (why not include a small credit for the artist when the photograph is reproduced), but its request for all rights is not uncommon for the prize winners.
 

No Prize, You Lose!

However, what is becoming very uncommon these days is for a competition organiser to appropriate the copyright of all the entries in a competition, whether they eventually use them or not.
 
I guess Tourism Australia would have to be expecting some 10,000 entries in this competition. Most entries will not be of sufficient standard to be used, but let’s say there are 100 great ideas. Over 90 of those ideas will have been obtained for free.
So what happens to your entry (if you are foolish enough to risk it – not that I’m taking sides, of course)?
 
First up, you assign the copyright in the photograph to Tourism Australia. This means that you can’t sell this photograph to anyone else, you can’t publish it in your own book or on your own website (not without Tourism Australia’s permission as the copyright owner), and you can’t copy it (you can’t take another photo just like it).
 
Second, Tourism Australia can use your photograph without crediting you. They can also take your photograph and modify it in anyway – crop it, change colour, use parts of it etcetera. You have no control or say over what they do.
 
And third, Tourism Australia can sell your photograph to someone else. They can receive money for your hard work and to my mind that is unethical and unacceptable.
 

Sour Grapes

So, is this just a case of professional photographers being upset that they won’t be hired for Tourism Australia’s next campaign?
When you look at it philosophically, we pay our taxes to live in a country that has certain principles. Those principles include copyright protection and moral rights, so it is confusing when an arm of our government disregards them.
 
Sure, Tourism Australia has a budget to meet and it has every right to run a competition. And I agree that the winners of the competition would be somewhat compensated for the use of their photographs (a stock library would charge over $50,000 for the use of one image on a worldwide basis for one year, which means the photographer from the library would end up with 40 or 50 percent of the gross).
However, to have the right to use any of the other entrants’ photographs without any payment is not acceptable. The budget for this promotion over the next three years is reportedly $150 million. Is Tourism Australia saying it can’t afford to pay even a token amount for the great ideas it uses?
 
Advertising photographers will be well aware of how little they can be paid for a promotion that spends literally millions of dollars on media. It doesn’t make sense that people can make such a large investment with such a flimsy budget for photography, but I digress.
It would be so easy for Tourism Australia to find some budget and change its rules to make a token payment to entrants whose photographs are used. You can bet the website design and judging the competition will cost far more than the prizes given out. You can also bet that the people employed to produce the campaign and make it look great will be paid a whole lot more than the value of the prizes. So why has the content they are working with have so little value?
 

Indemnities

Another interesting point is that the rules require the entrants to obtain all permissions and releases before they enter the competition. Again, I have summarised the terms and conditions:
 
10. By entering the Promotion, Eligible Entrants represent and warrant that:
(a) their entry is original and they own the entry and have the right to assign or license copyright ownership and other intellectual property rights in the entry to the Promoter;
(b) their entry does not violate the privacy rights, copyright, contract rights or other rights ... of any person, corporation or entity;
(e) if the entry in any way includes images of locations that require permission, permits or releases to be obtained for the commercial use of the image ... they have obtained the required consents and releases from the appropriate owners/authorities;

 

So what will happen when a photograph of Bondi Beach is entered and there are a number of people recognisable in the photograph? Will Tourism Australia be smart enough not to use this photograph without seeing a model release (even if it won a prize), or assume they can use it with impunity, sure in the knowledge the entrant has obtained a written model release?
 
Good luck!
 
So maybe there will be work for professional photographers after all, re-creating these great ideas with paid talent and the necessary model releases?
 
Good luck!
 
And I wonder what happens if a photograph of Uluru wins the competition. Uluru sits in a Commonwealth Reserve where photography is covered by the Environment Protection and Biodiversity Conservation Act. Within this Act are rules which prevent people from commercially exploiting photographs taken of Uluru without obtaining permission.
 
I wonder how many entrants will even know these rules exist when they enter their wonderful sunset shots from the new viewing platform at Uluru?

And I wonder if Tourism Australia, as one government body to another, will bother to check it’s okay to use the image before running it in an international advertising campaign?
 

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