“They’re a shocker. Has NAVA seen the latest art competition entry conditions? What they’re asking is that all the applicants agree to assign our copyright entirely and in perpetuity even if we’re not selected! Is this legal?”
This is the latest complaint from an angry artist to come across the desk of the National Association for the Visual Arts (NAVA). It concerns a competition being run by a not-for-profit government entity that you would think would be leading the ethical charge.
On ringing them I’m told the organisers believe that they are doing the right thing because their company lawyers have provided the principles and wording of the competition entry requirements.
In this case, what the artists who win stand to gain is a very modest honorarium but also the chance for their work to be widely seen and publicised. So you might think, isn’t that fair – publicity in exchange for copyright?
OK let’s just drill down a bit. Why should the competition organisers want this complete control over copyright in the designs by all applicants, not just the winners? It could be because it gives them the possibility of using these images (and there might be many hundreds of them if it is a big, well publicised very public event) for many other purposes: general promotion of their company beyond this event; having well known artists seem to endorse them and what they do; and merchandising of other stuff like commemorative mugs, tea towels, scarves etc without having to negotiate a separate licence or pay a proportion of the profits to the artist.
As it turns out, this mob was willing to change its conditions when the problem was pointed out to them. But their first thought, as is commonly the case, was to raise money for their own good cause with the artists seen simply as the willing suppliers of the cultural capital.
This however jeopardises the ability of artists to make a living from their practice. In the case of say a photographic competition like the one run last year by Tourism Australia, there were thousands of entries - professional photographers and people who just take snaps.
For the professionals if their image was chosen to head up the campaign it could be argued that it was a good way for them to secure broad exposure and interest amongst potential paying clients for other jobs. But if each of the entrants signs away their rights with no guarantee that their work will even be attributed to them, not only is their professional skill being exploited, but they are not even necessarily getting their name out in public as the quid pro quo for giving up these rights.
Often artists don’t notice what’s in the fine print and happily send off their entry dreaming of winning the prize, not realising the consequences. And even if they might take the trouble to read the conditions, they are often so keen to get their work seen that they will allow themselves to be exploited.
In the Code of Practice for the Professional Australian Visual Arts, Craft and Design Sector, there is a whole chapter on Competitions, Awards and Prizes with various clauses which set best practice standards for these circumstances. Under the heading ‘Reproduction of Artistic Works’, the Code states that “Many Conditions of Entry …inappropriately request extensive free reproduction (copy) rights” and advises that, “An organiser who wants to use a practitioner’s copyright should negotiate an agreement with the practitioner and pay an appropriate fee.”
In cases like these, NAVA advises that the organisers should limit their copyright licence requirements to simply ask winners of the competition or award to agree that they license use of the image of the work only for the purposes of promoting the event and for a limited duration.
If any other uses are contemplated, separate licences should be negotiated with the artists delivering them some agreed proportion of any income generated. And always the artists should be attributed.
Artists are often the victims of their desire to be recognised and can be easy prey for unethical operators. Reputable organisations should not be seeking to promote their own profile and earn income by exploiting artists’ desire for their work to be seen in public.
While technically the organisers may not be breaking the law, it is going against the spirit of Copyright law which is intended to ensure that artists have a reasonable share in the income generated from the reproduction or sale of their work and are fully attributed.
So artists beware and let NAVA know if you come across similar conditions so that we can take action on your behalf and raise awareness of the rights of all artists.
By Tamara Winikoff
Executive Director, National Association for the Visual Arts