Monday, November 16, 2009

Giving Permission For Use Forever, Even Without Winning!

I'm seeing it all the time, from equine magazines to commercial horse product manufacturers: prizes offered for entering their photo contest. The latest is from Troxel, the helmet people. Offering about $250 in prizes of a helmet/vest/carry bag for the first place, helmets for 2-5th. Everyone who enters has given the rights to have their photo used in perpetuity for any use Troxel deems useful, without any further compensation, credit, etc. Troxel thought it worthwhile enough to fill out a contact form on my website, inviting me to submit, just so you don't think I'm particularly picking on them. Dover Saddlery is another who recently did one of these contest aka image grabs.

Companies use these user-provided photos for their image libraries. They don't want to pay professional photographers for their stock images, why should they when they can get "just as good" images for free? Whether web-res or print-resolution, this is just wrong. Sometimes it's just the legal department going "over the top", and when questioned, sometimes companies will revise their Terms and Conditions. Don't enter without reading the T&Cs, or you'll deserve what you get.

Troxel puts the burden of proof on the entrant for clearing copyright. If anyone enters that contest with an image they've purchased from me in print OR digital form of them wearing a helmet, they're in violation--images provided for personal use are not released for 3rd party use!

The recent Easy Care contest winner asked for me for permission in advance. Upon winning, she got 4 EBs as a prize. Go ahead, say it--I got "exposure" because I had a visible watermark. LOL. That was useful when I was starting out. I was happy to provide that one as I loved the shot, but Easy Care had to agree first about no collateral use. Pros need to keep the lights on, buy fuel, eat, so we're careful about how often we'll permit this. But I digress.

There's a site which tracks good vs evil rights-grabbing photo contests, and offers the Bill of Rights. An easy read at Pro Imaging.

Expert in licensing and copyright and a very successful commercial/editorial photographer, Jeff Sedlik also teaches at Art Center College of Design. I got his permission to repost from the Advertising Photographers of America e-list his checklist for photo contests:
David, here is a list that I created for the evaluation of contests received at the Art Center College of Design. Students are prime targets for contest operators seeking libraries of free images for use in marketing and promotion of products and services. It is more common that overzealous legal advisors draft terms that are far more expansive than needed.

Contests are to be rejected if one or more of the following is required under the contest terms:

1. Transfer or assignment of copyright ownership to contest operator or sponsors.
2. Exclusivity of any nature, including any limitation on the continued use of the photography by the entrant. (In the event that a photograph wins a grand prize or other substantial award, some degree of very limited exclusivity is acceptable).
3. The right to use any photograph that does not win an award.
4. The right to use any winning photograph to promote any brand, product or service, other than indirect promotional value received as the result of displays expressly purposed to announce the winning photographs
5. The right to reproduce the photograph in or on publications or products offered for sale, other than publications expressly purposed to announce the winning photographs.
6. The right to use of the photograph without a photo credit
7. The right to sublicense or assign any rights to third parties, except as necessary to facilitate permitted uses.
8. That the entrant hold the contest operator or sponsors “harmless” from liability associated with the use of the photographs, except as related to falsified or incorrect claims or information provided by the entrant.
9. That the entrant grant any perpetual or unlimited rights
10. That the entrant allow the contest owner to store or duplicate the photograph, other than as necessary to facilitate permitted uses.
11. Alteration of the contest rules by the contest operator after the first submission is received.
12. The granting of additional rights to sponsors in exchange for awards to winning entrants.
13. That entrants agree in advance to approve additional unspecified terms if their image is selected.

The Contest May Require of the Entrant:
1. Use of any winning photograph by the contest owner or sponsor, only for the direct promotion of the contest, with photo credit, up to 5 years
2. Use of any winning photograph in a display of winning photographs, with photo credit, up to 5 years
3. Transfer of ownership in the digital file or print submitted, only for the purposes of permanent destruction. Does not include copyright.
4. Entrant must submit model releases if photograph is selected as winner.
5. Submission of reproduction quality files by winning entrants.

The Contest Rules Must Require of Contest Operator:
1. Photo credit on all reproductions.
2. Return OR destruction of all entries
3. Advance express permission and license from entrant for any uses other than permitted uses.
4. Notification of all entrants who request notification of winning entries.
5. Compliance with federal, state and local laws.
6. Preservation of embedded metadata in all electronic reproductions.


ljk73 said...

Wow. This post was spectacularly helpful and educational, on a variety of different levels. Thank you. I enjoy shooting nature and my horse is one of my favorite subjects. I was recently published on a magazine cover under a "perpetuity" type of agreement, but hopefully it's not something I should be overly worried about since I'm not a pro, just a hobbyist. I would like to link back to this post.

Jane said...

Awesome content! I really learn a lot of things from this blog. You also try to work on natural horsemanship training.