Tourism Australia is running a competition inviting all Australians to participate in their next tourism campaign, but it is a big problem.
Just by entering the competition (not winning) you are assigning all rights to the image are submitting to the promoter for any use, EVER. You are also liable for any unreleased talent, locations, brands and products in the shot. To find that out, takes some reading to find.
Competitions that fairly reward the photographers and enthusiasts for the end use of their (winning) images are fine, but competitions that shamelessly grab the rights of all entered images via the small print of the Terms and Conditions is just wrong, unfair and un-Australian.
Beware of this one.
There's nothing Australian about the "Nothing Like Australia" competition
http://www.nothinglikeaustralia.com/
10. By entering the Promotion, Eligible Entrants represent and warrant that:
(a) their entry is original and they own the entry and have the right to assign or license copyright ownership and other intellectual property rights in the entry to the Promoter;
(b) their entry does not violate the privacy rights, copyright, contract rights or other rights (including but not limited to intellectual property rights) of any person, corporation or entity;
(c) their entry does not contain content, or their conduct in creating the content, was not illegal, contrary to any laws, indecent, obscene, threatening, discriminatory, harassing to any person, in breach of any confidence, defamatory, libellous, offensive or objectionable;
(d) if the entry in any way includes third parties, including Aboriginal and Torres Strait Islander peoples, or third party property, they have obtained the required consents and releases from those third parties and/or Aboriginal and Torres Strait Islander peoples (or third party property owners) to include them in their entry;
(e) if the entry in any way includes images of locations that require permission, permits or releases to be obtained for the commercial use of the image (including images of Aboriginal and Torres Strait Islander sacred sites), they have obtained the required consents and releases from the appropriate owners/authorities; and
(f) if the entry in any way includes third parties under the age of 18 years, they have obtained the required consents and releases from the parents or legal guardians (as applicable) of those third parties or the third party property owners to include them in their entry.
11. By entering the Promotion, Eligible Entrants absolutely and unconditionally assign (and agree to use their best endeavours to procure any relevant third parties to absolutely and unconditionally assign) to the Promoter all right, title and interest in all intellectual property rights in their entry, including ownership of intellectual property rights in any photograph that forms part of an entry.
12. By entering the Promotion, Eligible Entrants acknowledge that their entry may be used by the Promoter, the Promoter’s related entities, agencies engaged by the Promoter, or any other third party nominated by the Promoter, for the Promoter’s current and future promotional and marketing purposes without further reference or compensation to them. Eligible Entrants unconditionally and irrevocably:
(a) consent to any act or omission that would otherwise infringe any of their moral rights in their entry (as defined in Part IX of the Copyright Act 1968 (Cth)) and present and future rights of a similar nature conferred by statute anywhere in the world whether occurring before or after this consent is given (Moral Rights); and
(b) waive all Moral Rights in their entry that arise outside Australia.
45. Entrants agree and acknowledge that all entries and any intellectual property rights subsisting in their entries become and remain the property of the Promoter.
[...] Photographer Gavin Blue on Tourism Australia’s “There’s Nothing Like…”… [...]
Most competitions involving a “creative” component, of which the majority are “complete in 25 words or less the following Competition Question” usually assign the rights to the promoter, ie: “All entries become and remain the property of the Promoter”. Not saying I agree with it, just pointing out it’s usual practice.
Thanks for your response Andrew. I get your point and in the case you mentioned. The Competition Question winning entry would be referred to and celebrated rather than become part of the commercial campaign used by the promoter or any third party nominated by the promoter.(and remember it is for all entered images not just the winners)
GB
Hi GB, I agree, most creative competitions will use and publicise just the winning entry/entries, but in this particular competition, point 12 in the promotion is the warning where it states “Entrants acknowledge that their entry may be used by the Promoter, the Promoter’s related entities, agencies engaged by the Promoter, or any other third party nominated by the Promoter, for the Promoter’s current and future promotional and marketing purposes without further reference or compensation to them.”
While it doesn’t guarantee they will use all images, it certainly leaves the option available to them to use whichever and how ever many they want to use.
Gavin, got onto this via Mumbrella and I must say that I agree with you 100%. This is disgusting and is one reason why I always read the fine print when friends of mine say “Hey, you should enter this great competition!”. Not all of them do it, but it’s sad how many of them make you release all copyright and rights to your photograph.
Thanks for bringing this up and sharing.
I have gone over the TA regulations in this competition most thoroughly and it would seem to have been drawn up by a risk manager on steroids.
Point 12 says (sorry that I repeat it) “Entrants acknowledge that their entry may be used by the Promoter, the Promoter’s related entities, , for the Promoter’s current and future promotional and marketing purposes without further reference or compensation to them.”
Fo any budding photographers keen to enter this competition I suggest having a good lawyer at hand to explain the legal jargon. You may be giving too much away.
There is no explanation as to who the “agencies engaged by the Promoter, or any other third party nominated by the Promoter” which could lead ro goalpost changing along the line. More important, there is no time limit for the use of material.
After a series of lame promos over the past few years — and at considerable cost, I hope TA is not about to shoot itself in the foot again.
Well spotted Gavin. Too few photographers (and their clients) understand basic copyright and licensing terms, let alone the possible implications of agreeing to the representations and warranties you’ve reproduced here.
The terms of this campaign would be the equivalent of JJJ’s ‘Unearthed’ campaign telling unsigned bands they can submit songs for possible radio play, but once submitted their song becomes the property of JJJ to exploit in anyway it sees fit, forever, with no payment to the artist, ever. Sound like a good deal?
Re Andrew’s comment above, most online competitions only use the ’25 words or less’ component as a device to be able to characterise their competition as a ‘game of skill’ rather than a game of chance (which requires more onerous lotteries registrations in each State the comp runs in). But no one is worried their Haiku masterpiece is going to end up on Coke’s next billboard campaign.
This of course is stupid and bullying behaviour on the part of Tourism Australia, and I’d encourage the ACMP to really get vocal in highlighting it. What a great opportunity for the peak industry body to draw attention to photographers’ intellectual property rights!
Getting slightly of topic here but Dave mentioned words of less competitions are often used due to the issue involved in registering games of chance competitions. The downside of words or less competitions for promoters is that less people enter them, but better for compers as better chance to win.
Now back on topic. As the Tourism Australia campaign is a photography competition, there are two camps entrants fall into. One being the professional and amateur photographers who take their craft seriously and those that are compers/occasional photographers. The latter are less inclined to care what happens after they submit their entry, they just want to be in with a chance to win a prize.
If it had the headline,
“Let us use your photos for free for not only this campaign but anything we or our associated agencies can think of in the future, and you will have a chance of winning a travel voucher, by the way, if the subjects in the photo don’t like it and it get’s us in trouble, it is your fault”
it would be more upfront.
Hi Gavin,
I agree with Andrew above. I think you’re missing the point – most people entering this aren’t pro photographers, and as such don’t expect to make a living out of their photos. On the contrary, most would think it was pretty cool to see their photo being used as much as possible (a sort of ‘claim to fame’ for average joe who submits his holiday snaps).
An argument over ‘fair use’ and copyright coming from someone who is trading off the Apple brand identity in their blog is a little ironic, don’t you think??
As for ‘UnAustralian’… what a very Aussie thing to say. And also to not trust the ‘powers that be’ (in this case Tourism Aus) seems quite Aussie. But why can’t we just back a campaign that’s supposed to pull people together and present a welcoming face to the rest of the world?
I for one think it’s a reasonable concept. And no, no affiliation with TA in any way…
Hi (Other)Andrew,
Thanks for commenting. I actually think the concept is reasonable too, and I am sure people would love a hand in promoting Australia to the world.
I very much doubt people would like or expect to see the photos they uploaded for this promotion be used 5 years later commercially for something totally unrelated and unexpected by one of the Promoter’s nominated third party’s.
The promotion would be fine with a fair change to the terms of conditions;
* Specifying where the images may be used, used only in this campaign with a time limit.
* Winning entries only being used and if other images are used, a prize of some sort is given,(it doesn’t have to be much) eg Jetstar gave $100 vouchers in one of their competitions.
*The model/property releases made easy for people
Not much to ask.
And on my blog, I bought my blog template from a company called Pagelines http://www.pagelines.com/, they are relatively high profile are well thought of and given the price ($75USD), I presumed the Apple “style” was licensed/approved. I have emailed them to check. If it isn’t approved, I would actually change theme.
Hi Gavin,
Thanks for taking the time to respond. I agree with you regarding the point that if it was used for an unrelated purpose by a third party at a later point, it’d be seen as a bit rich. However, I think that’s more likely to be a legal ‘coverall’ than something that TA would intend to do – probably the biggest stretch would be a tourism organisation promoting Australia using the images from an official TA library. I don’t think we’ll see them wholesaling them like stock photography. But I take your point re time limit and agree that specifying the context (ie promoting Aust directly) would be good amendments to the conditions, as would be some sort of reward for any use (although the latter would place a fair administrative burden on TA to implement).
Btw, I’m not suggesting you’re deliberately violating anything with the blog style, and I did note that it was based on a template. I’m not sure whether you’ll get a response from Pagelines, but Apple don’t license or approve their logo or brand for ANYTHING unrelated to their products, EVER (I’ve had that discussion with one of their marketing managers previously). They would have to be the most protective brand in existence. However, much respect for your comment that if it’s not approved you’d change it. Kudos.
Keep a look out for my royalty-free, grainy iPhone photo of the Harbour Bridge appearing in a TA advertisement soon
Thanks (Other)Andrew,
I have approached TA both directly and through the agency so l’ll see what comes from it.
And I look forward to your grainy iPhone shot of the Harbour Bridge with the property release for the Harbour Bridge, the Opera House(in background) and the Harbour Foreshore (with receipt for location fee) and the model releases for the people in the shot plus the working with children permit for the children in the shot…………….sigh.
I am interested to see what Apple says too.
Thanks for taking the time to debate.
G
The most interesting thing about this to me is not that you’re giving the promoter the right to use any and all entered images (although I agree that some greater clarity on scope would be good) – but the way in which you’re assigning the rights.
Eligible Entrants absolutely and unconditionally assign (and agree to use their best endeavours to procure any relevant third parties to absolutely and unconditionally assign) to the Promoter all right, title and interest in all intellectual property rights in their entry, including ownership of intellectual property rights in any photograph that forms part of an entry
Usually in competitions like this you assign them usage rights. In this case you are assigning all rights including ownership. At this point you would probably actually be obligated to delete all your own copies of the image as nothing in the terms from there onward grants you any rights on the image which you no-longer own.
If you were to enter an image and also post it on your website, they would be entirely within their (legal) rights to demand it be removed, and potentially even demand damages.
There are sound reasons why promoters require usage rights on all entries (if nothing else it would allow them to have an online gallery of best entries, for example) – but in this case the scope seems incredibly excessive and the level of rights they are claiming is completely unnecessary.
Other Andrew is mistaken to suggest the validity of the campaign (good concept) and ‘she’ll be right mate’ attitude of the average punter entrant excuses TA’s lawyers, who have fundamentally over-stepped the mark.
Why?
a) the warranties and representations you must agree to are effectively impossible to give unless you’re a professional photographer who knows what is required, and could actually be bothered to procure the necessary signatures and documentation (see GB’s last post for what’s actually required). This leaves the photographer (not TA) liable when the person in the background of the winning shot says “I wanna get paid” etc.
b) demanding absolute and unconditional assignment of ownership of every entry (not even the winning entry!) is not required, and is far from reasonable. The naivety of an amateur photographer in not bothering to read the terms, or caring, doesn’t make it ok that TA’s lawyers think it’s reasonable to put such cart blanche terms in there. The terms should provide for TA’s usage that a reasonable person would expect in the circumstances, i.e. a limited license to use entered images for the duration of the campaign, perhaps with an exclusive license for winning images, but that’s it.
I guarantee that 99% of punters would not expect that on entering such a competition their rights to their photo cease in entirety. Ridiculous.
Tourism Australia should be supporting Australian talent by commissioning work to promote Australia to the world. Asking for free concept and content and ripping off both moral and copyright from photographers shows a distinct lack of imagination. Whoever thought this up at TA should be ashamed
The theme developers pagelines got back to me about the licence to use apple(ish) icons.
Their response was “We don’t use actual Apple icons in the theme, they have been taken from an open source icon set available on the web”
Coincidentally, they have updated their theme to which they said “But to your point, we are moving away from using anything directly derived from copyrighted materials”
So I have I have updated to the new theme.
G
Just to add my support to everything Gavin has said. TA is not alone in creating methods where they rely on the entrants ignorance or lack of interest in reading the fine print. Agreeing to terms and conditions these days, is always seen as a minor inconvenience. How many of us actually read the T&C when we agree to an update or installing a piece of software. Seems that its the very people we elect to represent our views play the most cynical games with T&C that are grossly unfair. Agreeing to hand over everything (copyright or unrestricted licence to use) is only scratching the surface. As one who has been voluntarily encouraging/guiding/protesting/educating photo competition organisers for over a decade now, the increase in photographic competitions which have unfair T&C for both pro and amateur alike, is sadly changed from a small wave to a tsunami. Tourism Australia’s T&C is about the worst I’ve ever seen.
FYI, today I was made aware of 3 more competitions, all of which have unfair T&C for the entrant. The good news is that even the amateur/enthusiast is becoming more aggrieved at unfair T&C, so those who respond with the opinion that its not aimed at pros, are missing the ethical and moral point.
And BTW Gavin, I just loved this response:
“And I look forward to your grainy iPhone shot of the Harbour Bridge with the property release for the Harbour Bridge, the Opera House(in background) and the Harbour Foreshore (with receipt for location fee) and the model releases for the people in the shot plus the working with children permit for the children in the shot…………….sigh.”
Brilliant
Now I’m just about to contact Qld Gov, who announced a new comp (their 9th in the last 12 months) to seek shots of Queenslands Infrastructure. I’m curious how that’s going to sit with the various anti terrorist laws. In Qld even pulling a camera out at a train station encourages the wrath of the police
In an email response to me, one of Tourism Australia’s justification was:”well in a survey we conducted, 80% of Australian said they wanted to help promote Australia”. Sure I might have said the same thing, but did they ask “who wants to promote Australia by giving up the rights in the images and leaving themselves legally liable for any litigation that might arise from the use of those pictures by us or any third party we give them to?” Totally different question.
Here’s what the Australian Copyright Council had to say in comment to the Crikey story:
“Australian Copyright Council
Posted Friday, 16 April 2010 at 11:42 am | Permalink
Following on from Robwalls question, “Copyright! Where the bloody hell are ya,” the Australian Copyright Council (which represents 23 of Australia’s creative industry peak bodies) agrees that Tourism Australia is out of line.
As Gavin Blue rightly points out, the Terms and Conditions used in this competition are extreme – particularly disturbing given that Tourism Australia is a Government body.
At the very least, the terms should be limited to a licensing arrangement, not a full assignment of copyright and waiver of moral rights for every single entrant.
What these terms could mean, in effect, is that an entrant will have to ask Tourism Australia’s permission to make their grandmother a copy of their holiday happy snaps, or put one on their Facebook page.”
This grabbing of rights has become all too common. Last year it was Relationships Australia celebrating its 60th anniversary by taking all rights in the winning photograph in their competition…from a 10 year old autistic boy!
What gets me really riled, is not just the cold legal way in which these things are done, but the sheer mean-spirited attitude that assumes that such actions are at all necessary.
I think it is incumbent upon all photographers to make their opinions know in every venue they possibly can, until bandits like Tourism Australia think twice about the amount of acrimony such actions generate.
Wouldn’t the best response be if every photographer aggrieved by TA’s unreasonable terms register their protest vote by stuffing the competition entry box with photoshopped pictures emblazoned with “Copyright theft is amoral” across it?
4 Photographic Competitions raised their heads this week – thats a little less than usual – all of them Australian based. One has great ideals, raising money for charity, but has a standard term of all entrants grant blah blah blah. Two are from Qld Gov and One more from another manufacturer.
So what can we do ? Raise awareness to all of those who might enter these competitions. Where can we all do this ? Many photographic forums exist throughout Australia. Go and post your warnings there. I’m a lone voice on many of these forums – but they’re listening
And what else ? Stop judging them !
A plea to my colleagues.
Please fellow photographers – yes this is a huge issue. But before you or any of your colleagues agree to take part in any photographic competition – PLEASE read the terms and conditions for entrants. It completely dilutes the argument against these type of competitions when well known photographers are judging similar competitions with equally restrictive terms and conditions.
Oh and as BTW from the mouth of Tourism Australia:
“this is not a photographic competition”
Hmmm
This competition really inspires me to take a down-under holiday…in New Zealand!
Beside the fact that TA is obviously stealing other people’s IP forever, an interesting angle on this is that all images that they receive by way of upload seem to automatically become the property of TA to do with as they please.
I’m wondering what happens if someone uploads something illegal? Is TA now legally liable for such material?
This seems to be an issue for pretty much every site or application that allows image uploads. Regardless of whether the submission is ‘accepted’ or not, the recipient server still holds a copy of a piece of material that is illegal.
Tourism Australia backdown…
No doubt many of you will have received similar emails, but I thought it might be a good idea to post this here, especially in light of Tourism Australia’s change of stance. I got this email about an hour ago:
“G’Day Rob
We wanted to let you know that we’ve made a couple of changes to the terms and conditions of this competition. But don’t worry! We’ve actually made them better. A few other entrants have asked whether or not the terms and conditions were a bit conservative and would prevent you from being able to share, sell or reproduce your photos that you had uploaded to our site.
We thought that was a fair question, so we had another look at the terms and conditions and we’ve made a couple of changes. Those changes mean that when you entered this competition, and agreed to the terms and conditions, you have now only granted us a license to use your photo and words to promote Australia as a holiday destination both here and overseas. But you still retain your own rights over your image and words.
Thanks so much for getting involved in this great campaign to promote our country. We really appreciate it.
Kind regards
The Tourism Australia Team
E: tacompetition@tourism.australia.com
Competition:www.nothinglikeaustralia.com | Consumer:www.australia.com “
A Win for the Common Sense and Photog rights.
It does appears that after lobbying from ACMP, AIPP and other advocates and interest groups like mine where I wrote this blog http://www.photoartgallery.com/blog/post/Theres-nothing-like-An-Un-Australian-Photo-Competition.aspx that common sense has prevailed and the T&C’s have been amended today.
Well done Gavin and William too !
Thanks Gavin , a win for everyone, but the win was fully down to you. Thanks again Colin
Well done Gavin, it seems to me that they were trying to get away with it until someone read the small print. It’s happened here in the West with Tourism WA more than once that a tender for professional work is announced and has the same small print included – I can’t see many professionals wanting to enter into a tender like that. I think they too backed down eventually. I don’t know if you remember back in 2006 that TA received a lot of negative press when they and their agency hired a British Photographer to shoot their latest campaign – http://www.bandt.com.au/news/48/0c03c648.asp still has the report online. Well done again…
One of the main points you’ve failed to highlight, is that without such clauses, the Promoter can in fact, find themselves in quite a lot of trouble should an individual ever sell their photo to someone else, who then owns the copyright. This saves them the overhead and headache with having to deal with legal issues when there should be none.
It seems that common sense hasn’t prevailed.
Tourism Australia changed the T&C from a rights grab to a non-exclusive worldwide licence in perpetuity with the bonus of being able to pass the images on to third parties.
The major change is you are able to use your own prints. I don’t think that is the biggest of victories.
Thanks Kirk for your comment.
Yes the promoter does need such clauses to protect itself while it is building a free photolibrary while pretending to run a competition.
G
Kirk – to respond to your comments. Yes the promoter needs Terms and Conditions, but lets remember that its a “competition”, or its meant to be. Entering a competition should not mean that you have to relinquish the copyright of your entry. Doesnt matter if you’re a pro or an enthusiast. Same principle applies in my opinion.
Gavin – to clarify what you said. The major changes are that you retain the copyright if you enter. Thats a point of principle I put to them representing both photographic associations. Sure I would have preferred that TA had moved a bit further and accepted the normally acceptable Photo Comp Terms and Conditions, that all finalists and winners would grant a non exclusive licence to TA. Instead all entrants have to accept that by entering that they grant TA a non exclusive licence. Personally I see that as disappointing, but still a step in the right direction.
And its a shame that an organisation as important as TA feel the need to depend on such overwhelmingly unfair T&C to produce a campaign. Clearly money wasnt an issue here as the amount of entries although is approaching 30,000; that amount in dollars is probably just a few of the celebrity appearance fee, or less than a month of just one tv channels media advertising costs.
So in some ways, I believe that common sense has prevailed, and by working together, not just associations and their representatives, but vast numbers of enthusiasts from forums, clubs and individually have all supported the communications and negotiations with TA.
I have looked at many of the some 29,000 + images and it would appear that
appropriate signed release documentation would apply to the content of many of these images.
There may be a large portion of these images which were shot before the TA promotion, and thus would not address the issues of an image being gripped by this commercial campaign.
Photographers who have not obtained the relative release documentation where applicable, for the content of the image leave themselves open to possible legal action down the track. TA should not allow their campaign to expose inexperienced photographers to this situation and should test the waters on many of the images as to compliance.
There is no doubt that all of the finally accepted images will be incorporated in to one massive photo bank for continual use by TA and other parties while generating a fee income to TA.
Well who can be surprised with this?
Today there is a 4 page advertising feature for Tourism Australia using the images from the Nothing Like Australia Campaign.
There are girls in bikinis, children, plenty of adults, aboriginals, national parks and private properties. Are they all model released?
G
Interestingly, the latest gov’t run competition, the NSW http://www.parliamentaryphotoprize.com.au/ seems to have similar questionably vague T&C.
“Copyright: Photographers retain copyright in their photographs. However submission of an entry gives to the New South Wales Parliament and the organising committee permission without any fee to exhibit the finalists’ works at the New South Wales Parliament and at any other venue within New South Wales to which the exhibition is transferred during the 12 months after the closing date for entries. Submission of an entry also gives the New South Wales Parliament and the organising committee a non-exclusive, perpetual, irrevocable permission to reproduce finalists’ photographs without fee and without payment to any featured person for the purposes of marketing and promoting the competition, the exhibition, and any future New South Wales Parliamentary Photographic Prize or similar competition. This permission extends to publication and reproduction for the above purposes in the media, on catalogues, posters, postcards, publications, on the internet (including on the competition website and the Parliamentary website), in any New South Wales Parliamentary publication, and in any other publications (printed or digital) including newspapers, magazines and journals. Where possible, photographers will receive credits with each use.”
Another blogger is chasing up in response to it. His thoughts/enquiries can be found here:
http://gtvone.com/2010/06/17/nsw-parliamentary-plein-air-photographic-prize/
One of my photos was included in the 4 page advertising feature in the Sydney Morning Herald and The Age and I can tell you that nobody contacted me to check that the picture I entered (of a child) had been model released.
I just checked out the State and Territory finalists and as I am not one of them I am wondering if I have given 60 of my best images away for nothing. When you say the T&C have been changed so that Tourism Australia no longer own the rights to images but instead have a non-exclusive worldwide licence to use them, does this mean I can sell my own images on postcards?
HI Jennifer,
Basically you have given away 60 of your best images to Tourism Australia and any other third party that Tourism Australia would like to give the images to.
The terms and conditions have been changed so now you can still actually use the images. The previous outrageous terms and conditions didn’t even allow you to use your own images.
It is very interesting that TA didn’t check that the child was model released. The T&C do say that basically you are liable if anything arises.
This is a ridiculous situation that Tourism Australia has created.