This guide has been written to help organisers of competitions seeking creative works construct terms and conditions that specify the usage rights they need for works submitted to their contests.
Sample terms and conditions are provided and the guidance is written such that the terms and conditions created will comply with the standards set out in the Bill of Rights For Artists.
If you are unfamiliar with intellectual property rights and licensing please read the Guide to Rights and Licensing before using this guide. That guide steps through the various concepts that need to be understood before you create terms and conditions for your competition.
Don't be tempted to copy terms and conditions from another contest, that could be a serious mistake. Terms and conditions from another contest may not be appropriate for yours, nor can you be sure that they provide you with protection against potential legal actions that can arise from competitions. It is also possible that copied T&C's could be unfair to entrants and result in bad publicity for your contest.
If you are using a lawyer to draft your contest terms and conditions, and we would recommend that most organisers seek legal advice, then bring the Bill of Rights For Artists and this Guide to your lawyers attention.
This guide is split into four parts. Following this first introductory part there are three further parts as shown by the tabs. The second part deals with the statements you need in your terms and conditions to set out the responsibilities of entrants to your competition or appeal with regard to the rights of others.
The third part deals with the statements you need in the terms and conditions which set out the rights the entrants are to grant your organisation by entering the contest.
The fourth part deals with judging, release documents and the closing date for entries to your competition.
Note that the Bill of Rights for Artists has made special provisions for charities that depend on donation or subscriptions to support their cause. Full details are given in the section of the Bill of Rights dedicated to charities. Note however that charities and non-profit making organizations should create terms and conditions as per this guide and only seek specific additional rights by voluntary donation as described in the Bill of Rights.
Italics. Note that all sample terms and conditions displayed in this guide are shown in italics.
Bold. In the sample terms and conditions the phrases Competition Name and Organization Name appear in bold to indicate that you should substitute these phrases wherever they appear with the name of your competition and organization respectively.
( text ) Note also that in some of the sample terms and conditions there are optional clauses and/or phrases that may or may not apply to your contest. They are shown in brackets ( ). Include or exclude such optional clauses or phrases within your own terms and conditions as appropriate.
<n > Indicates the number of years that you need the right to use entrants works for.
When creating your own terms and conditions from the sample terms and conditions given in this guide replace <n > with the appropriate number of years.
It is possible for entrants to your contest to submit works that -
May not be their own
May contain recognisable images of people
May contain images of recognizable property
May contain trademarks
May contains images of commercial products
Promoting your competition by publishing such works without the appropriate permissions could result in legal action being taken against you and having to meet substantial costs.
To avoid the burden of such costs falling on your organisation you should declare in your terms and conditions that entrants are fully responsible for ensuring that the works they submit do not infringe the rights of others, and that they will be responsible for meeting the costs of any claims brought against you by third parties in respect of works the entrant has submitted.
Listed below are example terms and conditions setting out your requirements with regard to the rights status of the submitted works, and the permissions that entrants must have for specific types of work –
1 Copyright and Permissions
1.1 By submitting works to this contest you confirm that for each work submitted -
You alone are the author of your work and that it is your original work,
You are the sole copyright holder,
You have not licensed any rights in the work that conflict with the usage rights required by Organization Name,
You have the permission of any persons in the work, or if they are under 16, the consent of their parent or guardian, to grant the usage rights required by Organization Name,
You have permission from the owners of property shown in the work to grant the usage rights required by Organization Name,
That it does not include trademarks, contract rights, or any other intellectual property rights of any other third person or entity,
That it does not contain names, likenesses, or other characteristics identifying celebrities or other public figures, living or dead,
That it has not been a winning or shortlisted entry in any other competition,
You will be responsible for any claim made by any third party in respect of Your entry and to fully indemnify Organisation Name and its sponsors in respect of all royalties, fees and any other monies owing to any person or entity by reason of Your breaching any of the foregoing.
1.2 Organisation Name reserves the right, in its sole discretion, to disqualify any entry that does not comply with any of the above, even after the entry is submitted on the competition website.
You should define in the terms and conditions what you consider to be unacceptable content in the submitted works, for example pornographic material. The sample terms and conditions below set out the usual criteria for defining unacceptable content -
2 Unacceptable Content
2.1 Organisation Name reserves the right, in its sole discretion, to disqualify any entry -
That contains personally identifiable visual information about You or any other person,
That contains threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, pornographic or profane content,
That contains any material that could constitute or encourage conduct which would be considered a criminal offence, give rise to civil liability, or otherwise violate any law.
2.2 You agree to fully indemnify Organisation Name and its sponsors in respect of all costs owing to any person or entity arising by reason of Your breaching any of the foregoing.
Clearly there will be some variation in the rights an organisers needs depending on how a contest is being promoted and the usages required. The sample terms and conditions given in this part cover all the usages permitted by the Bill of Rights For Artists and therefore may include usage rights that you do not require. You can omit those terms and conditions concerning rights that you do not require.
Usually competition terms and conditions that define the rights needed by the organiser begin with a statement to re-assure the entrant that their copyright is respected and that the organiser does not make any claim on the entrants copyright for the submitted works. A statement should also be included to state that when the entrants work is published it will always be credited. For example -
3. Your Copyright and Moral Rights
Organisation Name respects Your rights and does not claim copyright for works You submit to this contest, You will retain full copyright in each entry.
In addition your moral rights are respected. Whenever Your work is published by Organisation Name (and its partners) You will be credited. Failure to publish a credit due to error or oversight shall not be deemed a breach of this condition.
You may see statements in some contests requiring entrants to waive their moral rights. Such a statement is prohibited by the Bill of Rights for Artists and should not be used in terms and conditions.
We are aware that there is no specific provision in, for example, U.S. copyright law with regard to moral rights (as set out in the Berne Convention), however it is claimed in the U.S. that other provisions within U.S. law provide similar protection.
However, the Bill of Rights for Artists takes its lead from the Berne Convention and stands on the principle that moral rights will be respected in competitions worldwide regardless of the presence or absence of specific legislation regarding these moral rights in individual countries.
Two of the important moral rights considered in this section are the right to be credited and the right to object to derogatory treatment of one’s work. The right to be credited is explicitly dealt with in the sample terms and conditions at 3.2 above.
With regard to objecting to derogatory treatment it is sometimes proposed by an organiser’s legal counsel that a ‘waive moral rights’ statement be added as a way of ensuring that entrants are unable to bring an action against the organiser for say, cropping a photo. Far be it from us to criticise legal counsel, who after all are only trying to protect their client, as they should, but the use of such a statement only brings a contest into disrepute amongst the public, the public are less likely to enter it, and it is likely to generate negative publicity for the organiser. All unwelcome and unecessary outcomes.
Requesting that moral rights be waived is unnecessary providing the organiser is clear in the terms and conditions about the rights they need. One of the rights they may need is the right to slightly crop a work to make it fit to some pre-defined layout on a website, publish it on a card and so on. It is unlikely that as an organiser you would wish to crop a work to such an extent that the entrant who submitted it would feel that it is derogatory treatment of their work. To spoil the appearance of an work by excessive cropping is not in the competitions interest, the contest is best promoted by displaying the works sympathetically and as the creator would expect.
The rights needed by a contest organisers are usually presented as a list as the sample terms and conditions below illustrate, each list item defining one of the rights needed. Note that paragraph 4.2 below specifies the period of time that the rights are required for. The Bill of Rights permits a maximum period of five years but choose the shortest period of time appropriate to the usage rights you need.
4. Use of works
4.1 By entering this contest You agree agree that any (winning or shortlisted) work You submit may be used by Organisation Name (and its partners) solely for marketing and promotional purposes of this contest or future contests and no other purpose, these uses include;
4.2 You hereby grant Organization Name a non-exclusive, royalty-free licence in each Entry throughout the world in all media for the uses described in 4.1 above for <n> years following the date of announcement of the winners.
4.3 You acknowledge your responsibility for protecting your Entry against misuse by third parties, by such means as the insertion of a watermark, for example, and by embedding ownership metadata. Organization Name and its Partners can assume no responsibility and are not liable for any misuse of your work by third parties. Organizer will make sure metadata is not stripped from displayed entries.
4.4 Should any uses of the work beyond those needed to promote the contest arise You will be contacted and given the opportunity to negotiate any such usage with the parties concerned independently of the competition.
In paragraph 4.1 above note the optional phrase winning or shortlisted. You should include this phrase if you intend only to use the winning or shortlisted entries to promote the competition.
In paragraph 4.2 insert the number of years that you intend to use the works for. The Bill of Rights for Artists permits up to a maximum of five years usage, choose the shortest time period appropriate to your promotional needs.
The list of uses given under paragraph 4.1 above are typical of the common usages. Delete those uses you don't need. Add any other uses you do need providing such uses are solely to promote the competition.
Paragraph 4.4 makes clear that any uses beyond those needed solely to promote the contest are to be negotiated with the creator independently of the competition.
Somewhere on the contest website there should be notes about judging and judges. The Bill of Rights for Artists states that entrants should know who is judging the contest along with brief biographcal details about them. When the Bill of Rights was being drafted the view was that entrants should know if their works are being judged by people with appropriate experience.
There are two methods of satisfying this requirement. In method one the contest website lists the judges along with notes about their background and experience.
In method two, to ensure anonymity during the judging phase, the judges details are not disclosed on the contest website until after the winners of the contest are announced. Either method complies with the Bill of Rights. Note that in the case of annual contests using method two when a contest is launched last years judges could be named from the outset.
If your competition terms and conditions require an entrant to sign a release document, or any other document at any stage as part of the competition process, then the documents concerned must either be displayed in full on the contest website for an entrant to view, or at least the full content of the terms and conditions from the documents be listed for entrants to read. Contestants should be able to read all the terms and conditions they may be subject to before they enter your contest.
Either in the terms and conditions, or somewhere on the contest website, a closing date/time for entries should be declared and this date/time must not be more than 16 monhs beyond the competition launch date.
In addition to those detailed previously in this guide you will need many other terms and conditions for your competition.
These will cover such diverse subjects as which entrants are eligible (professional and/or amateurs), any age limits and/or age ranges for entrants, the countries the competition is open to, the format or theme of the submitted works, how to submit them, return arrangements (if any), the theme and subjects to be addressed by the photographs, entry fees if any, prizes, and so on.
This guide was specifically written to address the main legal issues concerning rights and photography competitions but we may add further guidance on some of these other topics at a later date.