Guide to Rights & Licensing

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Introduction to Rights and Licensing

Intellectual Property

 

Intellectual Property

If you are entering a competition that seeks creative works such as photos, paintings, music, poems, etc., or you are an organiser of such competitions, we hope this article will help you to understand the importance, purpose and the need for terms and conditions in such competitions.

The object of this article is twofold -

  1. To give competition entrants the understanding they need to decide if terms and conditions of a competition are acceptable to them
  2. To give competition organisers and entrants a basic understanding of intellectual property rights and how they apply to creative competitions.

Note this article is not a full treatment of the law concerning intellectual property rights, that's a subject that legal specialists give their life to.

However, intellectual property rights and the licensing of these rights can be reduced down to simple concepts that everyone should have a basic grasp of. A knowledge of these concepts will enable entrants to read and understand competition terms and conditions. It will also help competition organisers to determine the rights they require entrants to grant to them to enable them to promote their competition.

 

Copyright & Intellectual Property

You create a work of art, a photo, a poem, a painting, a film etc., you could be an amateur doing it for fun, or a professional, the law grants everyone equal rights with regard to the works they create. The instant you create a work the law makes you the copyright owner of that work (but see note 1).

There are no forms to fill, you don't need to register your work, you just need to create it, you are now a copyright owner.

What does this mean?  It means that no one else can use or reproduce the work you have created without your permission. Being the copyright owner automatically gives you legal rights to control who, when, where, and what your work can be used for, these rights are commonly referred to as intellectual property rights.  Every country in the world has copyright laws in place to protect people and their works and these laws enable people to place a value on their creativity. It is a basic human right.

If you have ever created a work
YOU are a creator, a copyright owner, and have rights.

It is possible to legally transfer your copyright for specific works to another person or organisation, but there are very few good reasons for doing so. Always take legal advice from a lawyer who specialises in intellectual property law should anyone or any organisation propose that you transfer your copyright to them.

You may occasionally see competitions with rules requiring you to transfer your copyright or intellectual property rights to the organiser, do not enter such contests. Competitions with terms and conditions that are fair to the entrants will not make such demands of you. We will explain what we mean by fair terms and conditions later in this article.

Note 1. If you are an employee and create a work in the course of your employement it is likely that the copyrght belongs to the employer, dependent of course on any agreement that may be in place between you and your employer.

Licensing

 

Licensing

We need to talk about licensing now, to begin with a few notes about how creative works are licensed generally, then we shall discuss licensing and how it relates to creative competitions. For the purposes of this explanation we will consider licensing a photograph, but the principles described below apply generally to any creative work.

Licensing a photograph involves the photographer giving permission to use a photograph, via a license document, to a person or organisation. In return the person or organisation will pay an agreed license fee to the photographer.

Typically a license document will spell out how long they can use the photograph for, a year for example, what it can be used for (e.g. one specific usage, say in a book, or a particular advert), and where it can be used, in one country for example, or throughout Europe, or worldwide. The greater the rights requested, say usage for two years instead of one, or to have multiple uses, the greater will be the license fee charged by the photographer for these rights.

When the agreed license period expires the image must cease being used by the person or organisation the license was granted to. They can apply to the photographer for another license, and the photographer will charge another fee. This is how people can profit from their creativity.

Perhaps you are an amateur photographer, or only taking a family snap, and may think that your photograph has no value to anyone else. Your photographs are valuable. There are some organisations that harvest photographs taken by the public in order that the harvesting organisation concerned may profit by licensing the public's photographs to other organisations. Typically the harvesting is done via photographic competitions, but sometimes the harvesting is carried out by a straightforward appeal for photographs.

Competition Terms and Conditions = License

When submitting a work to a competition the entrant is in effect granting a license to the contest organiser, a license that enables the organiser to use the entrants work. Note that the competition organiser does need certain rights to use the submitted works to promote the competition, to display them on a contest website, to sub-license them to the media in order that publicity about the competition can be published, and so on. The competition terms and conditions (sometimes called rules) will set out which rights entrants have to grant the organiser if they wish to enter the competition.

It is up to entrants to read and understand these terms and conditions, to take note of the rights they have to grant the organiser, and to decide whether granting these rights are acceptable to them or not.

It is up to organisers to determine what are the rights they need to promote their competition, and also to set out the rights they need clearly and simply for entrants to understand.

Types of License

There are currently two predominant types of license, the Rights Managed license, and more recently the Royalty Free license has entered the arena.

Rights Managed is the traditional form of licensing whereby a work is licensed for a specific usage for a set time period in a specific geographical area; it may have other contraints on it's usage set out in the license. The wider the rights required by the licensor the bigger the license fee, and at the end of the time period set out in the license the work must cease to be used.

On the other hand the Royalty Free license involves a single initial fee payable by the licensor which normally entitles them to use the work in perpetuity for any purpose.

Typically competition terms and conditions will specify that the license the entrant is to grant to the organiser is of the Royalty Free type. Sometimes the Royalty Free license set out in the competition terms and conditions is time limited to a specific number of years, for example two years. In such a case the organiser would no longer have the right to use the submitted works after the two year period set out in the terms and conditions expires. Competition terms and conditions should set out a time limit during which they are permitted to use the entrants works to promote the competition.

In some contests the license is described as a perpetual Royalty Free license which enables the organiser to use the entrants works for ever. In order to promote a competition a perpetual license is unecessary and unfair to entrants, a time limit should always be specified.

Exclusive and Non-Exclusive Licenses

A license to use a work may be declared as exclusive or non-exclusive. Lets say for example that an organisation wished to license the use of a work, but they want an exclusive license. That is, they want the creator to guarantee that he/she will not license that work to any other organisation while they are using it. The creator would charge a higher fee for such a license because it limits their ability to profit from that work.

Non-exclusive licenses on the other hand allow creators to license their works to multiple organisations concurrently.

Now consider the terms exclusive and non-exclusive in relation to competitions. If competition terms and conditions require entrants to grant the organiser an exclusive license in perpetuity this would mean the creator can never use or license their work again because the usage required by the competition organiser in such a case is exclusive, and it is in perpetuity.

That is an example of an unfair license in that it effectively denies the entrant the use of their own creativity. They could not enter the work to another contest, publish it on Flickr, use it to create a greetings card, sell prints of it, etc, in fact they could be sued for doing so. It is for such reasons that it is very important to read terms and conditions and understand what they mean.

Competition terms and conditions that are being fair to the entrants will specify that the license the organiser needs is non-exclusive.

Moral Rights

 

Moral Rights

Moral rights are a complex subject in their own right and here we only propose to present a simple view of them with particular relevance to competition terms and conditions.

Moral Rights are a basic human right and are part of the law of copyright in most countries. Three of the important safeguards set out by the law on moral rights are to ensure that -

  1. the creator is rightfully acknowledged as the creator of their works.
  2. the creator has a legal right to object to derogatory treatment of their work.
  3. that there is a right to privacy with respect to works, that is they do not infringe on others privacy.

Moral rights are recognized in most countries as part of their copyright law, but in the U.S. for example this is not the case. The U.S. views "moral rights" provisions as being addressed sufficiently by other statutes, such as laws covering slander and libel.

The Right to be Credited

If you submits an work to a competition and it is published as part of the promotion of the competition it is only fair that the you should be credited with a copyright notice everytime it is published, for example -

© Joe Bloggs

Apart from crediting you such a notice makes it clear that the work is also subject to copyright and who the copyright owner is. You should expect to find in the competition terms and conditions a statement that the creator will always be credited.

Sometimes the rules will say the organiser will credit the creator but cannot be held responsible for inadvertant errors.. This form of words may be employed where the organiser is cocerned that a third party, say a newspaper, omits, in error, to credit the creator despite being instructed to do so.

The Right to Object to Derogatory Treatment

In most countries this right gives the creator the legal right to object to mistreatment of his work in a way that is "prejudicial to the honour and reputation" of the creator.

However, regardless of the specific legislation in particular countries it should be seen as right and proper that nothing should be done to a competition entrants works that the entrant would feel was derogatory. This should not be seen as restricting the right of an organiser to resize or slightly crop a submitted entry in order that it may fit to their promotional material on the web, in magazines, newspapers or any other media.

The Right to Privacy

This right applies to everyone, not creators. If a work contains images of recognizable people and it is entered to a competition the entrant should obtain the permission of all those recognisable people that it can be used by the competition organiser.

This can be achieved by having each person in the in the work sign a model release form which gives the organiser the right to use the work for the purposes set out in the competition rules. Competition organisers may in fact require entrants to submit signed model release forms.

Waiving of Moral Rights

Note that unlike copyright, your moral rights cannot be assigned to anyone else.  You may, by a written and signed agreement, with another specific person or organisation, waive your moral rights for specific works. Such an agreement is called a waiver. So, even if you have legally transferred copyright to another person or body, you can still enforce your moral rights, unless you have also signed a waiver with that person or organisation, in which case you have lost the right to enforce your moral rights against that person or organisation.

Some contest terms and conditions will require entrants to waive their moral rights. This is not an acceptable practice.

In some cases it may be that the organiser, not actually intending to do anything that could be deemed derogatory to the works, is only seeking moral rights to be waived to give the organiser absolute assurance that they cannot be sued by a creator just cropping a photograph say. This is an overkill practice, the organiser should simply require the right to crop/resize the works as needed to promote the competition and not seek waiving of moral rights.

On the other hand waiving of moral rights may be sought to enable an organiser to do as they wish with the creators' works and to commercially exploit them. This is a reprehensible practice and it is unfair to the entrants.

Rights Grabbing

 

Rights Grabbing

This is a phrase much bandied about with regard to competitions to which creative works are submitted. Many people have an approximate idea of what it means but until 2007 nobody had a precise definition. We set out in 2007 to remedy this lack of clarity and to provide a specific definition of rights grabbing with respect to competitions seeking creative works. Later we will give that definition but first we will discuss rights grabbing in general and it's effects.

Harvesting intellectual property rights from competition entrants to build valuable libraries of works that can be commercially exploited for the benefit of the organiser, and no benefit to the entrants who created the works, is generally viewed as rights grabbing. Rights grabbing can take many forms and the language used to express it in competition terms and conditions can be complex, subtle, and disguised.

The World Intellectual Property Organization defines the purpose of copyright and related rights as follows-

The purpose of copyright and related rights is twofold: to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.

Rights grabbing seeks to take advantage of a dynamic creative culture without returning value to creators and therefore the practice of rights grabbing is unethical.

Damage caused by Rights Grabbing

Rights grabbing is damaging to individual human creativity. It damages the creative industry by reducing the need to commission or purchase works. Rights grabbing devalues creativity by acquiring creativity for nothing. Rights grabbing damages the reputation and honour of those organisations who deploy the practice in order to get 'something for nothing'. Rights grabbing can damage the honour and reputation of creators when their works are used to promote products, services, or campaigns they do not approve of. Rights grabbing is unscrupulous and indefensible.

In August 2007 the first draft of the Bill of Rights for Artists was created to set out in detail those rights that competition organisers need and can claim to promote their competitions. At that time it was called the Bill of Rights for Photography Competitions but the word Artists was subsequently introduced to widen its scope and the word 'Competitions' dropped for the same reason.

During its creation and for some time afterwards there was liaison with competition organisers and creative associations to ensure that the provisions set out in the Bill of Rights were reasonable and fair to both competition organisers and competitions entrants.

Rights grabbing can now be defined as the consequence of any competition terms and conditions which claim rights in excess of those permitted by the Bill of Rights for Artists.

Unintentional Rights Grabbing

As a result of discussions with many competition organisers it has been realised that competition terms and conditions do not always accurately reflect the organisers intent with regard to how they will use the works.

On occasions it has been discovered that organisers terms and conditions, which implied they were going to exploit the works commercially, did not in fact reflect the use the organiser was going to make of the works, they had no intent to commercially exploit the entrants works.  Further discussion revealed in some of these instances that they had been advised by the lawyer to claim such and such a right simply to protect the organiser against potential claims that entrants might make concerning the use made of their works.

On other occasions, the organiser, having no knowledge of rights and licensing had simply copied the terms and conditions from another contest. If, without understanding them, they copied T&C's from a contest using rights grabbing terms and conditions the organiser would not realise that this was going look very bad and they could be quite shocked to find themselves the target of angry complaints from creators of artworks.

Unfortunately one can only judge how a contest may use the entrants works by reading the terms and conditions.

The Bill of Rights for Artists sets out in precise detail the rights an organiser can claim. We have also written an Organisers Guide to the Bill of Rights; if you are an organiser you can use that guide to help you draft the terms and conditions with regard to the rights you need to promote your competition. It will also advise what you should include in the competition terms and conditions to provide legal protection against the various claims that could arise from running a competition.

Sample T and Cs

 

Sample Terms and Conditions

Having discussed the need for and purpose of competition terms and conditions this article will be rounded off by displaying the kind of terms and conditions that would be used in competitions that meet all the provisions set out in the Bill of Rights for Artists.

Note that competition terms and conditions can be lengthy and cover much more than just the rights the organiser needs to use entrants works. In this example we are only going to look at the terms and conditions that concern the rights the entrant is required to grant the organiser and the entrants responsibilities regarding other peoples rights.

The terms and conditions from the contest are displayed in italics below - comments to explain their meaning will be displayed in the normal font.

Setting out the Entrants Responsibilities


1 Copyright and Permissions

1.1 By submitting works to this contest you confirm that for each work submitted -

  1. You alone are the author of your work and that it is your original work,

  2. You are the sole copyright holder,

  3. You have not licensed any rights in the work that conflict with the usage rights required by Organization Name,

  4. You have the permission of any persons in the work, or if they are under 16, the consent of their parent or guardian, to grant the usage rights required by Organization Name,

  5. You have permission from the owners of property shown in the work to grant the usage rights required by Organization Name,

  6. That it does not include trademarks, contract rights, or any other intellectual property rights of any other third person or entity,

  7. That it does not contain  names, likenesses, or other characteristics identifying celebrities or other public figures, living or dead,

  8. That it has not been a winning or shortlisted entry in any other competition,

  9. You will be responsible for any claim made by any third party in respect of Your entry and to fully indemnify Organisation Name and its sponsors in respect of all royalties, fees and any other monies owing to any person or entity by reason of Your breaching any of the foregoing.

1.2 Organisation Name reserves the right, in its sole discretion, to disqualify any entry that does not comply with any of the above, even after the entry is submitted on the competition website.


The above terms and conditions make clear that it is the entrants responsibility to ensure that the works they submit do not infringe any other person or organisations rights.

For example, you must not submit a work owned by someone else, or submit a work that contains a trademark. Should you do so, or any of the other actions listed above, and claims arise against the organiser, you, as the entrant, will be fully responsible for meeting all costs that the organiser may incur due to your breaching any of the requirements listed above.

They also make clear that it is the entrants responsibility to obtain permissions from people portrayed in their work in order that it may be used by the competition organiser.

Defining Unacceptable Content


2 Unacceptable Content

2.1 Organisation Name reserves the right, in its sole discretion, to disqualify any entry -

  1. That contains personally identifiable visual information about You or any other person,

  2. That contains threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, pornographic or profane content,

  3. That contains any material that could constitute or encourage conduct which would be considered a criminal offence, give rise to civil liability, or otherwise violate any law.

2.2 You agree to fully indemnify Organisation Name and its sponsors in respect of all costs owing to any person or entity arising by reason of Your breaching any of the foregoing.


The above terms and conditions make clear the kind of works that are unacceptable to the organiser, that the organiser has a right to disqualify offending entries and that you, as the entrant, will be responsible for any costs incurred by the organisers as a result of you breaching these conditions.

Respecting the Creators Rights


3. Your Copyright and Moral Rights

  1. Organisation Name respects your rights and does not claim ownership or copyright for works You submit to this contest, You will retain full ownership and copyright in each entry.

  2. In addition your moral rights are respected. Whenever Your work is published by Organisation Name (and its partners) You will be credited.  Failure to publish a credit due to error or oversight shall not be deemed a breach of this condition.


This makes clear that the entrant retains full ownership and copyright in each work they submit to the contest. A re-assuring statement which usually appears just before terms and conditions specify the rights that the organiser does need to promote the contest. In addition it makes clear that an entrants moral rights are respected.

Defining the Rights the Organiser Needs


4. Use of Works

4.1 By entering this contest You agree agree that any (winning or shortlisted) work You submit may be used by Organisation Name (and its partners) solely for marketing and promotional purposes of this contest or future contests and no other purpose, these uses include;

  1. judging the competition,
  2. displaying the entries on the competition website (and websites of partners),
  3. displaying the entries at public exhibitions to promote the competition,
  4. displaying the entries in a book, magazine or similar,
  5. publishing the entries on posters to promote the competition,
  6. publishing the entries on postcards to promote the competition,
  7. publishing the entries on a calendar to promote the competition,
  8. cropping and re-sizing the work as necessary to fit pre-defined formats to promote the competition,
  9. sub-licensing the entries to the press for reproduction in connection with the competition and any related exhibition,
  10. inclusion within any materials promoting the competition or any exhibition of works from this competition organized by Organization Name

4.2 You hereby grant Organization Name a non-exclusive, irrevocable licence in each Entry throughout the world  in all media for the uses described in 4.1 above for 2 years following the date of announcement of the winners on 31 August 2011.

4.3 You acknowledge Your responsibility for protecting your Entry against misuse by third parties, by for example, but not limited to, the insertion of a watermark. Organization Name and its Partners can assume no responsibility and are not liable for any misuse of works.

4.4 Should any work uses beyond those needed to promote the contest arise You will be contacted and given the opportunity to negotiate any such usage with the parties concerned independently of the competition.



The above sample terms and conditions makes clear that the organiser (and partners) require a license to use each work entered by the contestant, that it is non-exclusive, worldwide, irrevocable (you cannot change your mind) and for a maximum of two years starting on the 31st of August 2011. Contests that comply with the Bill of Rights will always specify a usage period of five years or less.

The terms and conditions also detail the way in which the works will be used and that by entering the competition you are granting the organiser a license to use the works you submit in the ways specified.