What to Consider Before Participating
In recent years the number of competitions open to both amateur and professional photographers has grown exponentially. In part, this has occurred in reaction to the demise of many of the source books that previously served to showcase photographers’ skills and images to the marketplace. And, while competitions can serve a purpose within your business plan and give your work significant visibility, there are a number of issues to consider before you enter.
First, determine the audience for the competition and see if exposure could be of value. Entering one competition after another without a plan or focus is simply not good business — and can be very expensive.
Review the terms and conditions to try to determine the competition’s purpose. Possible reasons for the competition may include showcasing work, building an image library, promoting a publication and sourcing wall art for a commercial institution. Photographers need to understand exactly what rights and usage are being granted in the terms and conditions simply by entering, and what happens if and when you actually win a prize.
As an example, a recent competition was run — by its own admission — to source wall art for a hotel. In this case, unlimited use rights were taken to all submissions and the copyright was taken to the top 20 finalists. Commercial photographers should seriously question the value in participating in such a contest. Additionally, there is no compensation for the use of the non-winning submissions. The awards would have to very substantial to make the transfer of copyright profitable — and these awards did not come close.
ASMP’s position is that:
- Rights should be granted only to the winning images, not all entries.
- The photographer should retain the copyright in all cases.
- The winning images may be used for the conduct and promotion of the competition, and the term of the license should not be excessive. In other words, there is no need for the grant of a perpetual license.
- No third-party use should be granted without the express, written permission of the photographer.
In addition, there are two areas within the competition terms/rules that require special attention: rights assignment and indemnification.
Many competitions ask for an unlimited-use perpetual license to all entries. This typically includes any use the competition would like to make of your images, including commercial, third-party, and web use. Competitions may even retain the right to license or sell your images — without compensation for you. Sometimes there is even a transfer of copyright, especially for the winning images. ASMP does not believe that this broad grant of license is in the best interests of our members. The terms should be scrutinized to determine exactly what rights are being assigned through participation and possibly winning.
Most competitions ask for affirmations and indemnifications related to the originality of the work and the potential for the work to violate other copyrights. But the indemnification may also state that the photographer will hold the competition harmless for the uses made of the images even after the photographer has signed away his rights and has no control over the uses. Many competitions go on to ask for indemnification for rights of privacy and trademark violations. Rights of privacy are state’s issues (governed by state law and potentially different in each jurisdiction) and violations do not arise from the making of the image but rather from the use of the image. Trademark violations also arise from use, not from creation of the image. In other words, the photographer could be held liable and subject to lawsuit because of how the photographer’s image was used by the competition.
A photographer should not hold someone harmless for uses over which he has no control or knowledge. ASMP believes that the only thing that a photographer should assert is that the work is original and that to the best of his or her knowledge does not infringe on anyone’s rights.
There may be tax implications to the winnings of a competition, and your accountant or tax professional should be consulted for advice and information.
You may be able to modify the competition’s terms and conditions in the same way you can modify a contract by striking-through clauses and adding your own. Some competitions are amenable to these changes, though many are not.
Some competitions may be entered by your clients — with or without your knowledge. In this case, clients should be made aware of the same issues outlined here, since it may adversely affect their businesses. If your clients understand that their best interests are aligned with your own, it may make it easier to enlist support for modification of the competition’s terms and conditions.
Note: ASMP has a sampling of release forms specific to architectural and design competitions available to download on the Architectural Specialty Group page on the ASMP site, and the content of those forms may be helpful, even for other kinds of competitions.
- When participating in a photography competition, proceed with caution and do your homework.
- Make sure you know exactly who is running the competition and for what purpose.
- Make participation meaningful as part of a well crafted marketing and promotion strategy.
- Know what rights are assigned by entering and what rights are assigned by winning.
- Learn the term of the license and how long it stays in force.
- Read and understand the indemnification and any affirmations that you are being asked to make.
If, after due consideration of these issues, you decide that it is in your best interest to enter a photography competition — good luck!