[Editor’s note: After pressure from the NUJ and co-sponsor Canon, The Guardian finally revoked the rights-grabbing clause four days after this article was written]
Despite earlier assurances, the new terms grant the Guardian exactly the same rights as before, although the wording has been changed from an outright copyright grab to a non-exclusive but extensive and perpetual license.
10.In consideration of GNL agreeing to consider the entry, each entrant grants to GNL an irrevocable, non-exclusive, royalty-free,worldwide licence for the full period of copyright to publish or otherwise use the entry in any way and at any time and to sub-license such rights to any third-party….GNL shall be free to assign such right to third-parties.
The new terms also include an additional clause regarding copyright, which now allows the original photographer to continue to use any entered photographs themselves.
11.For the avoidance of doubt, all rights of whatever nature (without limitation, copyright) throughout the world which the entrant has in their entry other than those expressly granted to GNL under the licence in paragraph 10 above are retained by the entrant.
“While this is technically not a copyright grab any more – it’s as close as it could possibly get”, said the National Union of Journalists’ John Toner. “It gives the Guardian the right to use the photographs anywhere and forever, as well as allowing them to resell the entrants’ work without paying them a penny.”
In a short statement, the Guardian said: “The competition terms and conditions have been amended to ensure that photographers can continue to exploit and derive income from their pictures should they choose to enter.”
However John Toner strongly refutes this claim. “While in theory the entrant could resell their work, it makes it almost impossible for them to do so as it puts them in direct competition with the Guardian’s own full-time syndication department. The Guardian can then easily undercut any amateur looking to sell the work for a reasonable professional fee.”
Terms “go against the championing of creativity”
Mark Stephens, a leading media lawyer for Finers Stephens Innocent, told EPUK: “The practice of using photo competitions which require photographers to give up their copyright seem to be to be a thinly veiled attempt at conning them out of their creative rights just so a large corporate can fatten up their picture stock.”
“The entrants are often amateurs without legal knowledge seeking a platform for their work in a very competitive environment. It ill behoves a corporation to use its economic muscle by abusing its dominant position in the relationship. A lot of work is done in the market place to assist photographers with their knowledge of copyright, but I am sure in many cases they are not aware of what they are giving up. Holding onto a copyright is a basic right which subsists for 70 years beyond the death of the photographer.”
“Any attempt to take this away from a photographer simply for entering a competition goes against the championing of creativity and surely outweighs the chance of winning a competition.”
The Guardian statement did not address why such an ethically conscious newspaper had chosen to insist upon such rights-grabbing terms. Traditional industry best practice is to ask for a license to use winning images solely to promote and publicise the competition.
Fury from both professionals and amateurs
After the original terms were published in the Guardian Weekend magazine last Saturday, there was instant uproar across both professional and amateur photography forums.
On an international photojournalism forum, a thread entitled “Guardian declare war on professional photographers” accused The Guardian of being “cynical”, “arrogant” and “abusing basic photographers’ rights for their own gain”.
Another contributor to an amateur forum suggested: “Why don’t we all submit photos of a handwritten note? It could say something along the lines of ‘I abhor the Guardian’s rights grab.’”
Shortly before EPUK’s original article was published on Monday, The Guardian issued this statement: “The Terms and Conditions accompanying the competition were out of keeping with our usual standard. This was an oversight on our part and from next Saturday they will be revised.”
A request from EPUK to see the amended rules prior to publication on Monday went unanswered. In the request, EPUK had explained that simply changing the wording from a copyright grab to a rights grab was unlikely to address the central problem.
However, the Guardian statement to EPUK gave the clear impression that the controversial rights-grab was to be dropped from the revised terms.
On Monday The Guardian also emailed those who had complained it directly, stating: “You’ll be pleased to know that the terms and conditions are being revised and a new updated version will appear on our website by the weekend.”
None of whose quoted on the forums who were contacted by EPUK were at all happy with the revisions. One said: “The new terms seem scarcely better than the old ones. Admittedly photographers submitting their work now retain the right to show it elsewhere without being sued by the Guardian. But under this contract Guardian Newspapers Limited may still publish and resell any submissions to the competition, worldwide, without a penny of the profits generated ever going to the photographer.”
Guardian’s ethical standards
The move is a clear departure from the high ethical and moral standards on which both The Guardian and its Sunday sibling The Observer pride themselves. Unusually for a newspaper group, it undertakes a yearly “social and ethical audit”: which was this year introduced with the words, “Given that we…write regularly about corporate social responsibility, we also wanted to reassure ourselves and others that we measure up to the high standards our editorials expect of other companies. ”
Under Syndication it states the importance of making sure “The Guardian’s values are not compromised by selling to unethical customers.” and that photographs cannot by syndicated for uses which “bring Guardian Newspapers Ltd into disrepute”. However, it makes no mention of the ethical standards by which pictures are obtained from competitions.
The Guardian has also been keen to stress that it treats its own freelance photographers with what it describes as “the highest possible ethical standards”. The titles’ own Freelance Charter is based around the assignment of rights by a “simple license” which “releases [suppliers] from any previous requirement to assign their copyright” and the Guardian pay special negotiated fees for extra licenses such as digital rights.
A well-placed Guardian insider who spoke to EPUK on condition of anonymity admitted that they would never employ freelance photographers under those rights-grabbing terms because of the Freelance Charter, but declined to comment on why different ethical standards applied to professionals and amateurs. However, a spokesperson for the Guardian had been keen to stress earlier this week that “only amateurs” would be affected by the competition terms.
At the time of publication, it was uncertain whether sponsor Canon – who recently stated that they would never back such a rights-grabbing competition – would continue their association with the Guardian. Canon UK told EPUK two weeks ago: “Canon treats photographers and their copyright with the greatest of respect, and would never ask them to agree to such terms as part of a competition”.
EPUK is keen to hear from any amateurs affected by the competition, especially those who were emailed by the Guardian on Monday. You can contact us at firstname.lastname@example.org
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