New Low In Photo Contest Rights-Grab Terms
It’s hardly newsworthy to find a photo contest where the submission terms allow the contest sponsor to grab a broad range of usage rights to the submitted images, in exchange for nothing other than the (usually slim) chance of being “published” — let alone winning some kind of prize that’s actually worth something. But here’s a contest that, in my experience, hits a new level of egregious rights-grabbing terms. Thanks to photographer David Sanger for pointing this one out on Google+.
The Golden Gate Bridge is turning 75. Every photographer loves it, so let’s celebrate with a photo contest! The winner will get a prize claimed to be worth about $1200… sounds cool, right? So come on — as the contest headline says, “Take Your Best Shot of the Golden Gate Bridge for Our Epic Photo Contest!” Yeah, it’s epic for sure… epic FAIL.
This opportunity is not so cool — have a read through the contest terms. Careful with that fine print, boys & girls! There are a couple of particularly irritating clauses, quite aside from the normal rights-grabbing terms. The most egregious clause says this:
By making a Submission in connection with the Contest, each entrant into the Contest hereby […] (b) agrees to assign all right, title, and interest in and to their Submission to Sponsor if such Submission is selected as one of the top Submissions […].
So if your photo is one of the non-prize-winning “top submissions”, not only do you give up usage rights for no compensation (see below), you actually give up all ownership & copyright of your image! What are the “top submissions”? This phrase isn’t defined in the terms, but apparently it means the top 49 images submitted — of which only 7 will be chosen as finalists, of which only a single one will win the $1200-valued prize. Good for the winner. (Sorta — I would sell all-media, worldwide, exclusive use including full rights transfer for a lot more than $1200!) But 48 other people, all of whom presumably produced a very appealing photo, end up giving away their images — not just giving usage rights, but giving up ownership entirely. For nothing in return. Sweet!
I understand what motivates organizations to try to grab royalty-free photo usage rights through contests. Hey, it’s a tough economy, why not try to get something for nothing? You can’t fault a guy for asking, can you? Well, sure I can. Photos are powerful, and they’re valuable, or there would be no reason to have a contest like this in the first place. Why should something of such value be given away for nothing? So yeah, I don’t like the attitude, and I don’t support it, but like I said at least I understand it. However, grabbing image ownership outright? The contest sponsor has already claimed sweeping, royalty-free usage rights. What more can they possibly have any legitimate need to get their hands on?
No, this is truly a new low in rights-grabbing behavior. Not even a hobbyist photographer who doesn’t understand or value intellectual property rights should be required to completely give away ownership of his or her creative work just by entering a contest. If for no other reason than the fact that many entrants probably don’t understand what they’ve given away, and so might be exposed to the risk of a DMCA take-down notice or infringement suit by the contest sponsor, if the photographers in ignorance continued to use “their own” images for anything. Isn’t it ironic, doncha think?
The second egregious contest clause is, unfortunately, something that’s much more common than the one above. It says:
Each person who enters the Contest represents and warrants as follows: […] (d) the entrant owns or controls the necessary legal and intellectual property rights in its Submission (including, without limitation, the copyright in the Submission itself and all other copyrightable subject matter reproduced or used in connection with the Submission and the publicity rights for anyone who is recognizable in the Submission) in order to make the grant of rights, licenses, and permissions that the entrant has made herein, and that the exercise of such rights, licenses, and permissions by Sponsor, including, but not limited to, publication on its website, shall not violate or infringe the rights of any third party; (e) the Submission does not and will not violate any applicable laws, […] Each entrant hereby agrees to indemnify and hold the Promotion Entities harmless from and against any and all third party claims, actions or proceedings of any kind and from any and all damages, liabilities, costs and expenses relating to or arising out of any breach or alleged breach of any of the covenants, representations and warranties of entrant hereunder.
So not only do contest entrants give up royalty-free usage rights, and not only do the top 49 submissions give up actual ownership & copyright, but all contest entrants agree to assume full legal liability if the contest sponsor uses the submitted images in a way that triggers any 3rd party to sue. All of the risk and none of the benefit accrues to the photographer who submitted the image — what a great deal. NOT!
Thinking about submitting a photo to this contest? Do you have a signed model release for any person that could be potentially identifiable in that shot? How about a property release for any building or piece of artwork, fashion or furniture, whose owner or designer might decide to sue for copyright infringement? Is there any commercial product whose logo or other trademark is showing? Better hope nothing submitted containing these kinds of contents ever gets published by the contest sponsor, because this is the sort of stuff that can trigger blowback that the contest terms are designed to flow right on through to the photographer. And these are just some of the most obvious things that could do it.
Now, having looked at those two clauses in the terms, the normal rights-grabbing terms still remain to be noted. Normally I’d criticize this part soundly; but next to the terms above, the actual rights-grab language sadly looks quite benevolent in comparison! Here’s what usage rights are given up:
By making a Submission in connection with the Contest, each entrant into the Contest hereby (a) irrevocably grants to Sponsor and its affiliates, and their respective successors and assigns, a non-exclusive, transferable, fully-paid, royalty-free, worldwide, perpetual, license, including the unlimited right to sublicense, use, copy, edit, modify, alter, transcode, adapt, translate, publicly perform, publicly display, store, reproduce, transmit and distribute the Submission by means of any and all media and devices whether now known or hereafter devised, including, without limitation, on the 7×7 website […]. Each entrant irrevocably waives any and all so-called moral rights they may have in the Submission. For clarity, Sponsor has the right (but not the obligation) to publish any Submission on the 7×7 website.
So here we see the standard rights-grab stuff: every single entry to the contest permits the sponsor to use that image worldwide, forever, in all media, etc. for no compensation. About the only good thing that can be said for these terms is that they’re non-exclusive, so the photographer still owns copyright to the image and can try to do something else with it. (Unless bad luck happens, and the image is one of the 48 “top submissions” that doesn’t win the prize, but still forfeits all ownership rights.) The last phrase is a final, petty-seeming kicker — even publication of the image is a “right” but not an “obligation”. The photo submitter gives everything, guaranteed; while the sponsor may give something, but doesn’t in fact have to give anything at all.
Folks, it’s just another example of needing to keep your wits about you, and reading the fine print. Plus understanding the value your work should have, both to yourself and to these kinds of rights-grabbing, for-profit enterprises that are looking for the highest quality images they can find, without paying for them. Even if you just consider yourself a hobbyist and don’t ever aspire to be a “professional” photographer, please… at least respect your own work enough not to fall for this kind of blatantly over-the-top operation.
I’ve labeled this post a “rant” but I want to end on a more upbeat note. Look, if you just want to get published, there are many better ways to do it. How? Just one example: donate some images to a worthy charity or non-profit organization whose mission you support. Like I said above, photographs are powerful and good ones are valuable. If you’re going to give great images away for free, do so to a cause that’s deserving of it.
Oh, and keep your copyright.
Caveat: I’m not a lawyer, though I’m reasonably clued in. To learn more about this kind of stuff from somebody who really is a lawyer (in the USA), check out the web site of Carolyn E. Wright.
What do you think, am I tilting at a windmill? Should we just cave in and embrace the new photo economy where quality work is given away free? (Though of course others will profit from it, just not me.) Or should for-profit organizations step up, acknowledge that quality work is worth something, and at least respect the content creators’ rights even in something as trivial as a public contest?