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A Guest Post by Dale Wilson
Photo contests have been around since the days when chemistry was first introduced to develop light sensitive cellulose – in other words, since before photography became a popular hobby in the 1930’s.
What has changed, however, is the intended flavour of the contest. It wasn’t long ago the photo contest was a vehicle that promoted the pleasurable pursuit of photography as a hobby and rewarded excellence in craft.
However, in the past decade, photo contests have more often than not become a rights grab by preying on unsuspecting entrants who have absolutely no idea what all the legal talk translates too. For example, the following text is copied from a recently announced contest by an internationally recognized environmental NGO that I have supported for years. Its rules read, in part:
By entering (reference to contest deleted) the contest, you retain the rights to your works while granting XXXX (sponsors name deleted) the unrestricted, royalty-free, perpetual right to use, reproduce, communicate, modify and display the works (in whole or in part) for any purpose without any fee or other form of compensation, and without further notification or permission.
By participating in this contest, you release and agree to indemnify and hold harmless XXXXX(reference to contest deleted) and its employees, directors, officers, affiliates, agents, judges and advertising and promotional agencies from any and all damages, injuries, claims, causes of actions, or losses of any kind resulting from your participation in this contest or receipt or use of any prize.
So, what does all this mumbo-jumbo mean and how does it relate to the photographer who wants to have some fun with their pictures?
First, because the contest sponsors are using a lot of legal jargon, it behoves the photographer to understand some of the terms. But first, let’s do a very quick primer on photography and copyright. As a preface let me first say this is NOT LEGAL ADVICE, but opinion based on more than 20 years as a professional photographer who has had to learn Copyright legislation by default.
In most free countries of the world, the moment you release the shutter on a camera the image is by default copyrighted in your name as the author of the work. There are a few exceptions, but as an amateur they probably don’t apply. As the owner of copyright, only you have the right to authorize reproduction of that photograph. Furthermore, you also have the right to have your name associated with the work in what is known as moral rights. Refer to the copyright legislation in your country, but for the most part this should hold true for countries subscribing to the Berne Convention.
With that out of the way, let’s get this in context. First, don’t be swooned by having your name appear in print – by law, in most cases, the publisher is compelled to identify you as the photographer under the Moral Rights conditions of the Act. That is the easy one.
What does Royalty Free mean? RF is a picture reproduction term which means the publisher is only compelled to honour you with a ‘reward’ just once. When they add all these other terms be aware that you could very well be providing them the authorization to re-sell your picture, or allow any company of their choosing, to use your picture without any further reward (royalty) coming back to you. The clause of “Royalty Free in Perpetuity” in all likelihood means the sponsor will be gaining something tangible from the use of your free source photo for many, many years into the future. This, in my opinion, is wrong and these contests should be avoided at all costs.
What does “Forever hold harmless and Indemnify” mean? This is the one clause that should send the largest red flag waving from the highest yardarm you have ever seen. Avoid at all costs, as it has potential to cost you more than anything you have ever owned, or will own.
Basically, by giving the sponsor the right in perpetuity to do whatever they wish with your picture you are saying they can use the image in any way they might decide without ever having to consult you prior to that use. In reality the sponsor could potentially sell that image of your neighbour’s young teen (even though you had permission to take the photograph) to a condom manufacturer for advertising purposes without you ever knowing. Your neighbour eventually sees the image, and rightfully flies off the handle and sues.
The publisher says “Not our problem” the photographer indemnified us from any and all claims. Ultimately you have absolutely no say in how the image is used, yet you assume any and all liability. Yes, you are giving the sponsor the right to sell that photo as a stock image so they can earn an income for their cause, and you have provided them the authority to do so just by entering a well intended photo contest for fun – regardless if you are a winner, or not!
Only you can decide whether you wish to enter a contest that demands indemnity against any and all claims. I can only say to you: I never would; it really is that plain and simple.
Before you enter that contest, read the entry rules, and, even more importantly, understand without reservation exactly what you are agreeing to merely by entering an image in the contest. Unfortunately, photo contests really have become the messenger for the time worn saying “the devil is in the details.”
Incidentally, I no longer offer visual or financial support to the NGO whose contest rules I have adapted for this entry. Common logic would suggest a sponsor should have the right to reproduce winning and honourable mention photos for the purpose of promoting future contests.
Once you understand the contest rules, ask yourself: Is this a bona fide contest that promotes and rewards excellence in my hobby, or is this a rights grab with a devil that may come back to haunt me?
See more of Dale Wilson’s work at his website.