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art and intellectual property

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visual art smith st intellectual property galleries and museums fitzroy collingwood business

Midnight 2 (C) Brian Ward 2006

On the weekend I printed one of the photographs I have taken of Smith St and took it to Hogan Gallery on Smith St, who are coordinating the Smith St Photography Competition, which is run by BOSS (Businesses on Smith St) – a local traders’ association. On reading the fine print on the entry form, I declined to enter. It was badly written and, in my opinion, designed to mislead the entrant into giving away their copyright and intellectual property in their work.

Firstly, one condition of entering the competition is that the work must be available for sale at the gallery, with an automatic commission of 20%. This is a fair commission rate, but is it fair to expect that the work must be for sale? Why should it be?

Secondly, BOSS claims an indefinite unlimited irrevocable licence to use the winning image in any context. This is simply unacceptable. There are no reasonable grounds for BOSS to demand such a condition. Any sensible artist would refuse to accept this.

I questioned the man working at Hogan about the copyright implications of the terms of entry. He claimed that the gallery had no say in them and that they were determined by BOSS. Given that Hogan will benefit commercially from the competition, however, it should take more responsibility for this issue. Professional galleries should understand these issues from a commercial perspective as well as from an artist’s point of view. Hogan clearly does not know or care.

BOSS has made Hogan the place to display the competition and sell the winning images. The relationship between Hogan Gallery and BOSS is not clear. Maybe Hogan is a member of BOSS. It would be helpful if their relationship was transparent in terms of the running of the competition.

BOSS is basically making the $2500 first prize a price in a contract for sale of the copyright and/or intellectual property of the winning entry. The man at Hogan admitted that the competition requires entrants to waive all rights to their work. The terms of entry do not make this clear. In fact they seem to deliberately avoid this fact.

Why should BOSS have the right to do whatever they want with the artist’s work? This could include resale as well as uses the artist would not appreciate. What about droit de suite in terms of infinitely reproducable digital photographic images? Why can BOSS chose to do anything with the image without paying for the use, when at least Hogan are going to sell the work, allowing the artist to be fairly rewarded?

BOSS should get some professional legal advice before constructing such inappropriate rules, and Hogan should protect their professional integrity by avoiding association with this unprofessional behaviour. If you’re offering a competition prize, do it honestly. If you want to buy the work, make your intentions clear. All entrants should be aware that they are going to be exploited.

visual art smith st intellectual property galleries and museums fitzroy collingwood business

Midnight 1 (C) Brian Ward 2006

I’d rather put my photos online. They will be taken and reused, but most bloggers understand creative commons and at least give an accurate attribution of who made the image and where it came from. They don’t illegally or unethically claim ownership of my work.

One comment

  1. Mm. It seems to be an ongoing problem these days – I remember another Australian photo competition mentioned in a group on Flickr a while back which turned out to have similarly onerous fine print. Ah, here’s the thread. Still, complaining sometimes helps.

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