Are You Gambling With Your Copyright By Entering That Photography Contest?

By Dave Rein

"Winner, winner, chicken dinner!"  I'm told that the phrase first started in Las Vegas casinos where you would hear gamblers and dealers yell it out  as winners would earn enough from their bets to buy the three-piece chicken special at the casinos.  Whatever its origins, the phrase makes me smile after hearing it.  

Thoughts of winning one of the countless photography contests also brings a smile to many as well -- amateurs and professionals alike.  Who wouldn't like to win a Canon 5D Mark II or maybe that lens you've been eying?  Before sending the kids out to lure the buffalo herd a little closer to get that winning shot, you might want to do some reading.

Reading, as in reading those pesky rules or what is usually called "terms and conditions."  The terms vary from a photographer giving the promoter a non-exclusive right to use the photograph for a limited purpose and limited period of time to granting the promoter all the rights in your photograph.  Of course, if you care to give the promoter all of the rights to your photograph, you might consider taking it off of your website and stop selling those signed prints because you might get sued!

Far fetched?  Gary Crabee wrote in his Enlightened Images photoblog about Costco's photo contest in which, by entering the contest, the contestants assign the copyright to any image to Costco.  Costco is not alone.  There may be questions of the enforceability of the clause, but Gary is right that Costco and others with these terms arguably can sue any contestant who continues to reproduce or distribute what used to be the contestant's own photograph!  I like to think that Costco would not enforce the full-extent of the assignment, but do you gamble on that by entering one of your bread-and-butter photographs in the contest?  By assigning all your rights, stock agencies like Getty Images are also not likely to accept your photograph.  Presto!  You've just deprived you of another source of income.

Most contests don't require the photographer to assign all of his or her rights, yet the terms and conditions can still be fairly broad.  In Walt Disney's Messy Baby Contest, you grant Disney the right to use your photograph throughout the "universe" in "perpetuity" although you have the right to use the photography as well.  I'm at a bit of a loss in calculating the going rate for using an Ansel Adams photograph on Saturn or elsewhere in the universe.  But if you have a gem on your hands, do you think you can compete with Disney's marketing muscle here on Earth?  Sorry, but my money is on Disney. 

So what can you do to protect yourself before entering a contest?  Here are a few suggestions:

  1. Read --the terms and conditions of the contest;
  2. Examine -- by following any links on the terms and conditions to see if there are any buried terms.
  3. Think -- before entering a contest where you assign "all the intellectual property rights",  grant "exclusive rights" or "perpetual rights";
  4. Consider recommendations -- by Pro-Imaging and others who monitor these contests.  Pro-Imaging, for example, uses its photographer's Bill of Rights to develop a list of "bad" contests and list of "good" contests

Armed with a little information, you can avoid the "sucker's bet" and call out with the rest of the contestants:  "Winner, winner, chicken dinner!"

 

Judge Posner's Copyright Proposal To Save Newspapers -- A Cosmic Paperboy?

By Dave Rein

I still turn to newspapers, whether on paper or on the Internet for my primary source of news, but it is no secret that newspapers are fighting for their lives -- not unlike Bruce Willis in pretty much any Die Hard movie.  Newspapers, rallying around AP, blame Google for their troubles.  Mike Masnick of techdirt, points to the staggering amounts of debt that the newspapers took on and there are probably a dozen other ailments giving newspapers the blues.

Many have suggested cures for the newspapers' ailments, including, as R. David Donoghue of the Chicago IP Law blog points out, the esteemed Judge Posner who hails from the Seventh Circuit in Chicago.  Judge Posner wrote in the Becker-Posner blog that we should ban online access to articles and bar anyone from paraphrasing or linking to a newspaper article without the newspaper's consent.  Otherwise, Judge Posner argues, free-loaders will run newspapers out of business. 

The commentary in response to Judge Posner's proposal focuses on skepticism that the proposal is workable, that he has become too sentimental for printed newspapers and that he is out of touch with social media.  But, what troubles me about the proposal is it appears to  venture awfully close to allowing newspapers to copyright facts.

The proposal to bar online access to copyrighted material without the copyright holder's consent is something the WSJ and a few other newspapers do already.  For example, to get full access to the WSJ's article about the AP creating an association to license and monitor who is republishing newspaper articles, you would need to subscribe to the WSJ.

Judge Posner's second suggestion, i.e. bar linking to or paraphrasing news articles, potentially could have greater implications.  Currently, copyright allows all of us to repeat facts found in books, newspapers and on the Internet if we do not copy the way those facts were repeated.  Copyright will protect how historical facts are expressed and not the facts themselves. 

To be fair, Judge Posner proposes a ban on paraphrasing newspaper articles or linking to the article.  He doesn't propose that newspapers should be able to copyright facts, but if nobody can paraphrase the article or link to it, does it effectively do the same thing?  Is there an argument that repeating a key fact or facts in an article is paraphrasing the article?  It strikes me that from a copyright perspective, Judge Posner's proposal has even wider implications than just for newspapers.

With that said, count me among the people who still subscribe to a printed newspaper and wouldn't mind having it stick around for a little longer.  If only the newspapers could create a real-life Early Edition where the hero received the Chicago Sun-Times the day before the news actually occurred:

[Discussing the mysterious newspaper]
Gary Hobson: Where is it coming from?
Marissa Clark: The hallway.
Gary Hobson: That's not what I meant.
Marissa Clark: Maybe it comes from God.
Gary Hobson: Yeah, God's a cosmic paperboy.