Recently, a member directed me to the terms of the Analog Sparks Awards (you can read the full terms and conditions here), and asked for my opinion on their fairness and reasonability. After review, I have some serious concerns and questions, and I opted to write this article to hopefully highlight some of these areas, make sure our members and photographers were made aware, and to extend the offer to Analog Sparks to have a further discussion about the rights being asked for in this contest.
At ASMP, we regularly see all manner of licensing and terms language associated with photo contests. These range from “pro-photographer” to “pro-contest organizer” and all points in between. But these terms are more than just legalese – they have an actual impact on your rights and remedies with respect to your photographs.
Here, we have a problem. The official Terms and Conditions do not match the promises made elsewhere in the contest website. But the legal language is what you agree to when you enter. We will be reaching out to Analog Sparks to clarify.
At the beginning, however, It’s important to note, in the FAQ, Analog Sparks makes clear how the work will be used:
Q: How will my images be used?
A: Any images that you submit to Analog Sparks may be used in promotional material related to the award (in social media, newsletters, on the Analog Sparks website, etc.) but never for any other purpose than the promotion of the Analog Sparks Foto Awards. You retain the copyright for your images and you will always be credited accordingly if your image(s) are used for this purpose. This includes media and press announcements in the case of your being awarded a prize in the competition and in the process of publicizing and promoting the Analog Sparks winning works . If we are contacted by outside media or press who wish to use Analog Sparks winning images in relation to promoting the Analog Sparks awards, we retain the right to provide them with a Analog Sparks Press Pack (which includes low-res files of all winning photographs) for publication online or in print, provided both the photographer and Analog Sparks are credited accordingly and the publication directly references the Analog Sparks awards. If higher resolution images are needed in the case of a print publication, the photographer will be contacted directly. Your images will never be released or allowed to be used for any purpose NOT specifically relating to the Analog Sparks photography awards.
If the legal terms and conditions mirrored this language in the FAQ, this article would instead be praising the organizers for a well-tailored and nuanced set of licenses. Unfortunately, it does not. And I certainly will give the benefit of the doubt to the organizers here, and would ask them to modify the Terms and Conditions to match the intentions expressed in the FAQ.
Concerning Clauses
While this article is not a line by line evaluation of the terms, and in fact I will only be looking at one small section, I will pick a few clauses that cause the most concern.
First, and to Analog Sparks credit, very early on in the Terms and Conditions is this phrase:
“Copyright and all other rights remain with the photographer. Any images used by Analog Sparks shall carry the photographer’s credit line.”
This is an important and critical inclusion, and if the contest you are entering seeks to have you transfer or otherwise grant the organizers your copyrights, unlike this one here, you should run in the other direction.
After this, however, things take a more concerning turn. Under a section named, “You Are Fully Responsible for Any Content You Provide to Analog Sparks”, bullet point two contains some very expansive licensing language.
While this single bullet point is more than 500 words, it asks much of the entrants. For example:
“…you would be granting Analog Sparks an irrevocable, perpetual, unlimited, non-exclusive, royalty-free, transferable, infinitely sub-licensable, worldwide license to use and exploit your Content, and very importantly and especially you are reminded that you allow Analog Sparks to publicly publish, exploit and promote your Content as well as to permit any third-parties including but not limited to press partners, marketing platforms and affiliate websites as decided by Analog Sparks at its sole discretion, as well as Analog Sparks itself and Analog Sparks System to promote, publish or exploit your Content without any obligations or dues towards you or to any third-parties.”
Here, by entering the contest you are granting the organizer a very broad license. “Irrevocable” means you can’t revoke or terminate the license. “Perpetual” means that this license exists forever. “Unlimited” means they can do with the work what they wish with no limitations. While these are expansive words, the license also notes that it is “non-exclusive” so that you, the Photographer, can license the work elsewhere, which is generally a pro-photographer clause.
While these clauses are overly broad, they are not necessarily uncommon. Some of the other terms, however, are more rarely seen, and of great concern. The license notes that it is “transferable” and “infinitely sub-licensable”. This should be a big RED FLAG. Any client, contest organizer, or other entity looking to license your work should have clear and distinct, specific, reasons to ask for this. Transferable means that they may simply transfer, to any other person or entity, the rights to your image. Sub-licensable means that they may sell (or license) your rights to any other third party. My reading of these terms and the contest generally show no compelling reason why the organizers would need such rights to the work submitted, especially in light of the stated purposes in the FAQ.
Summing Up
The broader point remains: it is incumbent upon the entrants to know what they are agreeing to, and what the terms are. It is also required of the organizers to ensure that the legal language matches the stated intent on the website. We hope that this is simply a case of an oversight. But as it is written, the FAQ noted above is at odds with the rights being requested and granted in the legal terms and conditions.
The legal license above is not limited to the promotion of the contest, or in any way tied to the contest, despite what is said in the FAQ. When granting licenses such as the ones described above, photographers should fully understand how their work could be used. It is, of course, reasonable that the winners grant a license so that the work can be used by the organizer to promote next year’s contest, create books, promote the organization, etc. Contests, and their organizers, play a vital role in the creative environment.
But here, simply by the terms of the contest, any image submitted can be used for any purpose by Analog Sparks, or they may, at their “sole discretion” decide to sell or give away those rights to any other third party, without discussion with or compensation to the photographer, for any purpose.
At ASMP we are dedicated to ensuring photographers’ rights are respected. To that end, we’d encourage all those who submit their work to contests to take a close look at the terms, evaluate what they mean, and make their decisions accordingly. Sometimes more expansive terms make sense, often, however, they do not.
We also encourage contest organizers to narrowly tailor the licenses they are requesting from entrants to be as limited as possible for the end uses intended. In this instance, Analog Sparks created a wonderful outline of a license in the FAQ, only to have that be upended by the legal terms. We certainly hope this oversight can be corrected for this and future competitions.