Canadian Geographic Magazine Photo Contest Rights Grab?

Canadian Geographic Magazine and Parks Canada have organized a photo contest entitled: Heritage Treasures of Parks Canada Photography Contest with three categories: Nature in Parks Canada, National Historic Sites, and Visitors at Parks Canada. The grand prize is a $3000 VIA Rail gift card and a Discovery National Pass to Canadian National Parks and Heritage Sites. The deadline is October 29, 2010.

The two paragraphs below are directly cut and pasted from Canadian Geographic’s Rules and Regulations page for this contest:

Publication

Winners of the grand prize, the top three prizes in each category and a special mention in the “Nature in Parks Canada” category will have their photo and name published in a future edition of Canadian Geographic, on the Canadian Geographic Photo Club Web site (photoclub.canadiangeographic.ca) and on the Parks Canada Web site (pc.gc.ca). The participant who wins the special mention for the International Year of Biodiversity in 2010 in the “Nature in Parks Canada” category will also have his or her photo and name published on Canada’s official Web site for the International Year of Biodiversity. Canadian Geographic and the Parks Canada Agency reserve the non-exclusive right to publish any entry and/or use any entry in promotional material. The participant is responsible for releasing copyright to the photo, and this copyright release must be available if the photo wins. All photos will be credited to the author’s name.

Copyright Notice

With respect to any photo entered in this contest, you, or the copyright holder for these photos, retain the copyright. By uploading or entering a photo in the contest, you grant (or certify that the photo’s copyright holder expressly grants) Canadian Geographic Enterprises, the Parks Canada Agency and its affiliated groups a world-wide, royalty-free, irrevocable and non-exclusive right and license to use, copy, adapt, transmit, communicate, publish, publicly display and distribute, as well as create and distribute compilations and derivative works or merchandise from any such submitted photos to promote the contest or any resulting public display. You further grant the Parks Canada Agency the right to archive the submitted photos and to use them as part of educational or business activities. You represent and warrant that you have the right to grant the license set out above.

Here is my perspective and opinion about the rules and regulations:

First, the issue of copyright is totally unclear. In paragraph one, we have Canadian Geographic telling us that “The participant is responsible for releasing copyright to the photo, and this copyright release must be available if the photo wins”. I read this as meaning that Canadian Geographic expects participants and especially winners will hand over their copyright to Canadian Geographic. But then in paragraph two, Canadian Geographic tells us; “With respect to any photo entered in this contest, you, or the copyright holder for these photos, retain the copyright”. Which one is it? Does the photographer retain copyright or not? Or is it only the contest winners who give up copyright? At the very least I think Canadian Geographic should rewrite the rules so we clearly know who retains copyright.

The issue of who owns copyright is huge. I am not a lawyer, but in my 25 years as a photographer, if I gave up copyright, I gave up ownership of my photo. While Canadian Geographic may credit you with taking the photo, the rules do not seem to require this in all the uses they may make of your photo. And, in my experience, if you transfer copyright they can do whatever they want with your photo without your permission. Technically, you no longer have any rights to the photo. You can’t sell it, print it, display it etc. without first getting permission from Canadian Geographic. Giving up copyright to your photos is like handing over your kids for adoption. Are the prizes worth giving up copyright? Only you can decide. For me, I would not enter this contest if I had to give up copyright.

Secondly, this line in paragraph two really worries me: “By uploading or entering a photo in the contest, you grant (or certify that the photo’s copyright holder expressly grants) Canadian Geographic Enterprises, the Parks Canada Agency and its affiliated groups a world-wide, royalty-free, irrevocable and non-exclusive right and license to use, copy, adapt, transmit, communicate, publish, publicly display and distribute, as well as create and distribute compilations and derivative works or merchandise from any such submitted photos to promote the contest or any resulting public display.” So even if the photographer still holds the copyright, simply by entering the competition Canadian Geographic, Parks Canada and affiliated groups (who knows how many) essentially have license to do what they wish with your photos. It might seem that such promotion is only in regard to the photo contest but when I see the word merchandise I get nervous. Does this mean Canadian Geographic can make a t-shirt with your photo and sell that t-shirt to promote future photo contests? If so, you will not see a dime of the proceeds. Maybe this was not Canadian Geographic’s intent but they still have the rights if they wanted to go this route.

If granting a royalty-free right to promote the contest does not worry you, then this line might make you pause: “You further grant the Parks Canada Agency the right to archive the submitted photos and to use them as part of educational or business activities.” To me this means Parks Canada can use your images in any way they want from educational slide shows and web information to actually using your photos in advertisements without any recompense or credit to the photographer. They can even license your photos for a fee to anyone without you ever getting a residual royalty. You might as well just put your photo entries on a disc and hand them over to Parks Canada to use as they wish because, in my experience, by entering the Canadian Geographic contest that is what you are effectively doing.

So… if you plan to enter this contest, be aware of what you may be giving up. I would also suggest anyone who is not happy with the terms of the competition or the clarity of the rules should write to Canadian Geographic with their concerns. More and more I see photo contests essentially taking all rights from the photographers and often entrants naively still enter because they don’t read or understand the rules. Part of the problem in this case is that the rights you are giving up are not clearly spelled out. Go here to email Canadian Geographic your concerns.

For an example of more a photographer friendly competition check out Nature’s Best Magazine’s Rules and Guidelines.

For another example of a rights grab contest see Bob Krist’s entry here

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18 Responses to “Canadian Geographic Magazine Photo Contest Rights Grab?”

  1. I never realized that they could actually do that but I guess it pays to read the fine print before sending anything that is yours. Thanks for bringing that up.

  2. Darwin,

    Releasing a copyright only means that you give permission to the party to whom you grant the release to use the photo under whatever terms are stated in the release. Giving a release does not transfer the copyright itself and the photographer retains all rights not specifically released, for example, the right to sell the image to other parties for other purposes. The one problem I see with their (or any such contest) is that you would never be able to sell ‘exclusive’ rights to the image thereafter but if that is unlikely, as it is for most images, it would not be a limitation on you.

    • James,

      I would love to hear from a Canadian copyright lawyer about this (my understanding is very different from yours). I hope I am wrong and you are right but I am sceptical until I hear from an authority in law.

      I never release copyright to my photos and I sell many photos per year with precise usage rights only. Maybe we’ll get clarity on this issue

      Darwin

  3. I noticed those terms a year or more ago. I’d be willing to bet that 90% of the photography contests that exist in the world are nothing more than corporations trying to put together a collection of images for them to use in advertising, without having to compensate the photographer. I wish more people would actually read the terms before entering things. So many of them have similar terms whereby you give them the right to use your image without compensation simply by entering the contest – and that is a very bad thing all around.

  4. Darwin, It seems to me this is a play on words. I agree with you in that we think of a “release” as just that. I do also believe James makes a good point, and could be argued as well.

    However, at the end of the day the mere act of just entering this contest -it matters not whether you are a prize winner- the entrant is providing by default “the right” for CG or Parks Canada to generate an income from that image without any royalty due the creator.

    The act of using the image in any variety of media means they (read as anyone who could possibly be interpretated as an affiliated group) have not had to hire a photographer to produce that material – thus a potential loss of income to a tax-paying photographer of Canada. In short, this is a not-so-clever vehcile to enhance the photo collections of the sponsors.

    The trick here is to wait and see if they use an image and don’t provide suitable photo credit. The moral rights, as provided for under the Copyright Act, have not been waived by default by entering the contest. Consequently sue their bloody as…

  5. Darwin,

    I wonder if you gave them a Jpeg, which would be altered and a different file then the RAW. You still have the RAW file and would retain copyright.

    David

    • David, the rules also do not allow altered content:

      “Content alteration of digital files is not acceptable. Cropping is permitted. Tonal or colour correction, including conversion to black and white, is acceptable.”

      d

  6. Darwin, in general your take on this hits the bulls-eye from my point of view. :)

    With respect to the terminology “releasing copyright” in the first paragraph of the guidelines you quoted, a face value reading of it looks bad for the reasons you noted. I’ve not seen this specific phrasing before, but the straightforward interpretation is that the winning photographers release their copyrights, i.e. the winners would no longer hold any rights to their winning images. Very uncool if those are the terms.

    However, it’s possible (even likely) that the guidelines are simply poorly & misleadingly worded. In addition to James’ thought, the terminology might also be meant to convey that the photographers must have any relevant model and/or property releases in possession for the winning entries, since they definitely will be published. Legally speaking I believe it’s the publisher of an image that is responsible for ensuring appropriate releases are in hand as required, but more & more this responsibility has been pushed to the photographer, as I’m sure you know. And this makes some sense, because it can be a logistical problem for the publisher to obtain releases after the fact if the photographer didn’t do so up front.

    Giving CG / Parks Canada the slight benefit of the doubt, I hope their wording indeed relates to some lesser form of release, and not actually to transferring copyright ownership. This is supported by the second paragraph stating that the photographers retain their copyrights. But absolutely, the organizers should clarify the guidelines because it’s confusing even to people who know something about the photography industry and how copyright and commercial licensing does (or should) work. I suspect the vast majority of amateur or casual photographers would not clearly understand the “release” terms in the first paragraph.

    Even giving CG / Parks Canada the benefit of the doubt, it is a slight one because you correctly go to the broader issue in the second paragraph — all entries, whether winning or not, are subjected to a total, unlimited rights grab. We see this with more and more contests these days, where publications or other commercial ventures essentially take advantage of unaware photographers to build out a perpetually royalty free library of thousands of decent-to-high quality, high resolution photos in exchange for handing out some prizes (perhaps even a few good ones) for a tiny number of winning entries.

    The potential value of a single such library of images, if they were rights-managed in a commercial licensing vein, would constitute many tens of thousands of dollars for all-media, worldwide, unlimited-time rights. Instead, via contests, companies and other organizations can sit back and wait for a large number of people to deliver what they think are their best images, and then use any or all of them for anything, forever, for free.

    Such rights grabs are horrible in terms of professional photography, but sadly many very good photographs are available now from people for whom photography is not a profession on any level. They are quite happy to give up commercial rights to images that they’d otherwise never sell at all, on the chance of winning something or at least getting published. This includes the right of exclusivity, mentioned by James, which in itself potentially can be hugely valuable… but only if one would ever even hope to exclusively license that image.

    This is just another side effect of the digital revolution and the internet, I’m afraid. But if folks don’t understand the implications of what they’re giving away, at a minimum they’re not making informed decisions. Getting the word out via articles like this hopefully will help some readers weigh matters…

    • hi Royce,

      as always your posts are thoughtful and tease out aspects of the arguement we all may have missed. Thanks so much for taking the time to write on this issue. Hopefully this blog entry will get peopel to write to CG if for nothing else to get clarity on the contest rules.

      Darwin

  7. David — afraid the JPEG (even somewhat altered) vs. RAW would not work as a way to dodge this type of rights grab. Copyright law has a whole body of application around derivative works. For these purposes, a post-processed JPEG would (I predict) very nearly always be considered the same photograph in a different format, for the purposes of copyright. To be considered different, the JPEG would have to have deviated substantially enough from the original that it would be considered a different work. That test goes way beyond cropping, levels, color tweaks, sharpening and other typical post-processing work.

    I believe the only pragmatic way to escape this problem in the past has been to shoot in-camera duplicates. With digital the issue of dupes has become somewhat murky, because digital copies can be completely undetectable as being anything other than “originals”. (A big problem in some sectors like law enforcement.) But if you could prove that two otherwise extremely similar images were in fact two separate original exposures, that would be one possible way to avoid losing control of an image of a certain subject matter.

    Of course, a customer looking to make an exclusive licensing deal for an image wouldn’t be happy to find out that a highly similar dupe was floating around out there in various other contexts, for example. Being legally correct doesn’t necessarily make a pragmatic difference if one submits images into a rights grab…

  8. No surprises here.

    The sad fact is despite the fact that people people may be giving up all rights to their image just by entering, there are a lot of photographers that will still do it.

    This isn’t new. Photographers, both amateurs and professionals have been giving their work away for next to nothing.

    It’s the magazine that should be ashamed for being so vague or even deceptive with this copyright statement.

  9. Thanks Royce and Darwin,

    Your explanations are sound. As a Professional I don’t enter photo contests. I do find it a little amateurish. I did enter contests 20 years ago but no longer.

    David

  10. Ross Blakey Says:

    Interesting read….

    Here’s something that is going on in England. A long read but you get the gist of it in short order…..

    http://www.copyrightaction.com/forum/uk-gov-nationalises-orphans-and-bans-non-consensual-photography-in-public?page=1

  11. It isn’t just a Canadian Geo problem. Have a look at the Weather Network “Terms”. Quelle Horreur!” My beef now is with municipalities that hold “contests” to milk the rubes for website photos etc..

    Unfortunately there’s always a lineup of the unknowing for these things. I don’t enter contests either. Some of the prizes are pathetic and in no way offer anything near what your work can be used for.

    I wonder if Parks Canada can use you photo and then come back and fine you for working their parks without a permit?

  12. [...] Canadian Geographic Magazine Photo Contest Rights Grab? « Darwin … [...]

  13. [...] a contest that should be on the unfair list send the Pro Imaging folks a note. BTW if you have not read my concerns about the new Canadian Geographic Photo Contest I suggest you take a moment especially if you are [...]

  14. [...] go to Photo Attorney (this is also a great legal resource site for photographers)!  Also see my previous rant about Canadian Geographic. And if you want to see what my ‘rules’ are for the photo [...]

  15. This kind of rights grab is by no means exclusive domain of these contests. Want to digitally print your photos at your local CVS? Be aware, their contract contains almost the same clause regarding “world-wide, royalty-free, irrevocable and non-exclusive right and license to use, copy, adapt, transmit, communicate, publish, publicly display and distribute, as well as create and distribute compilations and derivative works or merchandise from any such submitted photos”.

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