APOGEE PHOTO MAGAZINE:Photo Contests: Are They "Photo Fishing"? by Noella Ballenger

Note: I have seen some contests on occasion that don’t appear to be “fishing for photos”, so pay close attention. There are good ones out there—be patient and they’ll come along. But don’t assume because a prestigious company name is attached to the contest, that all is O.K.

And that is exactly for what companies are hoping—that you'll send in your very best photo, that exceptional image you captured just for their contest—for them!

The fishing line has been thrown out, the hook is baited and right in front of your face dangles THE PRIZE!

But is it really such a great prize for you or is the greatest prize for the company? Why would they need you to agree to all of those legally written rules and regulations about the use of your photo/s? Why would they need to use those photos in the future anyway? Could it be for their potential financial gain?

Let’s look at what is behind many of these contests…….why there are so many of them. How do they work? Let’s understand more about what all the legal jargon means and let’s review some of the wording in their rules and/or terms & conditions.

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Recently I have been getting a flood of e-mails about new photo contests. There is something very enticing and attractive about entering one of your images and receiving “international acclaim”, or the chance to be exhibited in a major show, or the opportunity to have millions of people looking at your work on a website or in a publication, or at the very least the chance to win that BIG $$$ first prize or the new camera equipment. It is truly an exciting opportunity—isn’t it?

First, let’s look at what you have that the promotional company wants or may want.

Note: Be aware that the company promoting a contest can be different from a company which sponsors a contest (gives their products away). The sponsor may not even be aware of the contest rules and regulations. Understandably, their goal is to have their products seen by as many people as possible and then sell those products.

When you take a photograph, a copyright is created and you own that copyright. A copyright is the legal recognition that this is your property and it has value. Perhaps its value is only to you and your family as a key to special memories. Perhaps its value is wrapped up in a historical or natural occasion that is special to others. Perhaps it is a one-of-a-kind photograph worthy of news, but regardless of what it is, there is value and that value is legally protected by your copyright and you have the ability to control and sell the usage of that image to others, should you so choose to do so.

We have now established that your image has some kind of value, so let’s take some time to read the contest’s rules for submission.

DO WHAT? READ WHAT?

Usually these “Official Rules” or “Terms & Conditions” are listed in fine print and are typically located in an out-of-the-way area on the website where it isn’t obvious to the casual viewer. What the contest folks are “banking on” is that the majority of people WILL NOT hunt for them, let alone read them….and they would be correct in that. It takes a bit of time and incentive to read through all of the clauses and conditions attached with the submission of an image. And maybe there is a little box to click on—by doing that you have agreed to all of these rules, even though you probably didn’t even read them. Besides, who cares, it’s a chance to win!

But you just might care, so let’s now look at some phrases, usages and words to help you sort out what they are asking you to do.

These words and phrases should put up
really large caution flags in your mind!

Remember, your entry in the contest represents a contract with the promotional organization and that contract may be difficult and possibly impossible to break once you commit to it by sending in your entry.

1. Frequently contests want to use not only the winner’s image but the images of anyone who enters the contest.
Using all images entered for advertising for the contest or the particular event and its promotion is one of the first clues I look for when reading the rules or terms and conditions. You could argue that the winners are getting a form of payment by receiving a prize for winning and this may be a reasonable usage for the winners but not necessarily for the entire body of entrants. It is usually done without credit or any kind of payment.

2. Usage in any and all media now known or known in the future.
That is a lot of usage that they can get for a relatively small prize when you think about it. What about stock photographers or other professionals that normally would have been paid for usage of their images? That is possibly a huge amount of money that they can save when they are creating a large photo library for their own use.

3. The biggest red flag of all is the phrase “in perpetuity” and that means forever and ever they have the right to use your image, because you chose to enter it into a contest—you gave it to them. Frequently there is added terminology that says they won’t give you credit, or any compensation or even a notification that they are using your image … and, if it is a really good image, they could be using it or selling it over and over again.

4. Then there is the phrase that indicates that they can assign the rights.

Those are the same rights that you granted to them by entering their contest. This means that they can sell or give away your copyrighted image to anyone…for any purpose. This means that they could sell and resell the reproduction rights to your image in any way and to anyone and to wherever they want to sell it. It doesn’t seem fair to me that you do the work, maybe even pay them for submitting to the contest and they receive your image rights for free. And to top it off, they can generate income from your image and you get zip.

Then there is one contest I saw that doesn’t even have a prize, but proclaims loudly that the winner will get the privilege of gracing the cover of their product’s box. Advertising is expensive indeed and if your image is that good and valuable to them then they should be paying you for using it in their advertising!

5. Contest Participants irrevocably forfeit rights of privacy, intellectual property rights or other legal rights that would preclude Promoter or affiliates from using the submitted image.

ARE THEY KIDDING? Right of privacy, legal rights?

Here is an example of where it could become spooky, because you could have not only the photo/s, but your name, address, likeness, biographic material published without any control by you.

Let’s say you have a great photo of your daughter or son and want to enter that into a contest with rules like this. Image usage can be sold and resold and that photo of your child might just end up being used in some unsavory way and you might just have your name and address and personal information published right along with it without your knowledge or consent or control. There would be no recourse or protection from this. Now maybe I’m letting my imagination go crazy, but better that then other possibly dire consequences.

6. They can also demand that in order to enter the contest the Participant agrees that he/she will never sue or assert any claim against the Promoter’s use of the submitted image.

7. How about this one: all entries become the property of …..(contest promoter). They aren’t being a bit shy about what they want here.

8. Or maybe these words: including but not limited to …! Those words usually precede a laundry list of things that they might want to do. This phrase leaves the gate wide open to do anything that they didn’t think of in the first place. Let me give you an example of that: including, but not limited to, the right to copy, distribute, transmit, display, perform, reproduce, edit, translate, reformat, and/or incorporate into a collective work.

Here is a variation of this one: All winning photos become the property of XXXX and may not be published anywhere else without their specific written consent (including any other internet sites) by XXXX. If you do then you forfeit the prizes. The way this one is written, you could not even put your own image up on your own website without their permission.

9. Here are some other words that are unacceptable: assigns, agents and licensees (this virtually can include anyone to whom they want to give your copyright) a worldwide (there are lots of good and lucrative markets in other parts of the world), royalty-free (no payment), non-exclusive (any one can have it) , sub licensable (you give it to them, they sell it to Joe who can sell it to Sally who can sell it to Suzy, etc.), unconditional (no restrictions of any kind on where, when or how it can be used (think alcohol, tobacco products or other products and/or services that you might not want to support in any way) and transferable right and license (see sub licensable above).

Here are some more: Reproduce, encode, store, modify, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, exhibit and/or otherwise use or reuse (without limitation, as to when or to the number of times used), the Participant’s name, address, image, likeness, statements, biographical material in contest promotions...

So now that we understand what they are asking you to sign away when you enter a contest, let me show you just how the money could work for them.

This is my hypothetical scenario...

Let’s say you and I are running a contest and in our contest, we ask for entries. Maybe we charge $10.00 for each entry submitted. And let’s say that 2000 people submit an image. That’s $20,000. Our prizes for the contest will be a new camera ($2000) for first prize, a new printer ($800) for second prize and a new tripod ($500) for third prize. Now then, we have 3 winners for a total of $3300.

Let’s sweeten up the deal and give away special $100 gift cards to our 10 runner ups (cost $1000.). That is a total of $4300 in prizes for all categories of winners and a profit of $15,700 (granted, we'll have some expenses too).

And if we can get the camera company, the printer company, the tripod company, and the gift card company to donate their merchandise in return for some free advertising, that's even better—more profit for us.

Now we said we had 2000 entrants and those 2000 images are also ours to use, resell or pretty much do anything we want with them and it didn’t cost us a thing. And our potential income from all of these 2000 photos could be substantial, even if only 300-400 of them are worth selling. If we continue to run contests, well...

And even if we ran a contest where there was no submission fee, the profits would still be there for us!

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I would be the last one to tell you not to enter a contest, but regardless of who the promoting agencies of the contest are you need to make that choice and it should be with the full understanding of what you are signing away. And don’t make the assumption that because a promoter and/or sponsor of the contest is a “big name”, that these conditions aren’t in their contracts.

Before you make a decision on giving up your photo rights, here is what you must do:

1. Be Sure to Read the Terms & Conditions

Contest promoters who "dangle that prize" in front of your face count on the fact that you are not going to read the Terms and Conditions of the contest--please take the time to know what you are giving away.

2. Be sure to know the company with whom your dealing if you choose to give up your rights to your photos. How will they be using that photo? What are they asking you to do?

3. Be sure that there are time limits and usage limits on any contest you enter. It isn’t fool proof protection, but it is a step in the right direction.

4. Print out and keep a copy of the entire contest package including the terms and conditions. Also include in the package you keep, a print of the photograph(s) you send to them. If something does go wrong, at least you will have all of the information that you might need in one spot.

If you do decide to enter a contest, and have read and understood the rules and what they are asking of you in return for the opportunity of having a chance to win something and still want to do it regardless, I sincerely wish you all good luck. At least you can now say that you have made an informed decision.

Note from the Apogee Photo Staff: Anyone who submitted photos to any of the Apogee Photo Contests retained their copyrights and only those winning photos were shown only within the Apogee Photo Magazine web site. All other photos were discarded.

We stated the following: Apogee Photo, Inc., warrants that all photo/image file/s copyrights remain the property of the photographer. Apogee Photo, Inc., shall not sell, grant the use of or give permission to use any photo/image file/s to any third person or entity without the written consent of the author/photographer.

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Would you like to learn more and become an even better photographer? Be sure to join Noella in one of her online classes presented through Apogee Photo. You'll want to get signed up today - just click here.

Visit her site at www.noellaballenger.com or send her an e-mail at Noella1B@aol.com Write to her at P.O. Box 457, La Canada, CA 91012, call: (818) 954-0933 or fax: (818) 954-0910 for more information on her workshop/tours.

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