Robbery on the high seas?
Written by John Macpherson
Jolly Roger © John MacPherson
Cruises?
Ah yes, the lure of the open ocean, exotic destinations, loads of fun, and of course your holiday photos……….you know, those ‘snaps’ that all your friends dread seeing when you come home……
….well they *could* be valuable.
Celebrity Cruises certainly think so. In fact they think they are so valuable they’re running a competition and giving away a free cruise in return for your holiday photographs taken on your phone. And to make it *really* enticing they’re getting some of the Magnum Photos alumni involved as part of both the judging process and part of the prize. Yes, that’s right a workshop with a Magnum photographer.
But that Magnum experience is only for the runners up.
The very lucky winner becomes their “Celebrity Cruises Photo Ambassador” and gets a free cruise. That’ll be two weeks on the high seas, relaxing by the pool, generally kicking back and having a stress-free experience then?
Er……no, not quite………
It’s not going to be THAT relaxed, because there’s a catch. Its in the small print (as usual). Well actually (and surprisingly) it’s NOT all in the small print, because the small print actually says its not, but that even though all the applicable terms and conditions are not expressly stated, you have to accept them anyway:
4. All information on how to enter this competition that is not contained in these terms and conditions shall also form an integral part of these terms and conditions. It is a condition of entry that these terms and conditions are accepted and that the entrant agrees to abide by these rules. Submission of any image(s) and/or information by entrant will be taken to mean acceptance of these terms and conditions.
What it appears you’re actually doing is working as an unpaid photographer for Celebrity Cruises for two weeks (and they’re not paying for all the excursions either, only two, although the competition rules state “As the Celebrity Cruises Photo Ambassador, you’ll embark on a complimentary 14-night Scandinavia & Russia cruise and photograph each port of call.” so I presume you’ll be expected to pay for the excursions at the other ports of call):
6. Winner agree to attend and be a correspondent for Celebrity Cruises including but not limited to participating on a cruise, sharing content through his/her social networking channels and taking smartphone camera photos of each destination visited using their personal smart phone. This includes but is not limited to: live tweeting, Facebook, Instagram, content sharing whilst on-board, photo sharing of shore excursions and on-board experience, completion of a Q&A to feature on Celebrity Cruises blog and to any other reasonable requests by the Promoter. Any images provided to Promoter by Winner during any shore excursion must comply with paragraph 8 and paragraph 11 above (as applicable).
“Not limited to” going on the cruise and being a photographer and ‘correspondent’ tasked with promoting their business? So what else might the ‘winner’ (and all the other entrants) find themselves involved in? Well…your guess is as good as mine…but what is expected is that they’ll hand over the rights in their intellectual property in perpetuity:
11. Entrant licenses to the Promoter a free of charge license to use in perpetuity any and/or all of the images submitted to Promoter for the benefit of promoting Celebrity Cruises Inc. and Promoter shall be free to feature any or all of the images on its Celebrity Cruises UK Facebook page and/or any other marketing materials including publications, websites, social networking sites, emails, direct marketing in any form for the promotion of this competition and/or post-competition or future marketing campaigns with or without reference to the entrant as author. Where Promoter wishes to reference the name of the entrant as author of the image(s), the entrant consents to such reference in all forms of marketing material.
So, in return for ‘winning’ you get to work as an unpaid photographer and promoter for Celebrity Cruises, and hand over rights in your images so they may be used in any way.
And although it’s a part of the contract that you should not expect to be credited for your work when they use it…… (11. {‘your work used’} with or without reference to the entrant as author“)………………
…if you don’t credit Celebrity Cruises when YOU use it, you’re in breach of the terms of the entry….
9. When sharing content on the Celebrity Cruises UK Facebook page and his/her personal Facebook page, Winner must include the Celebrity Cruise name (UKCelebrityCruises) and on Twitter the UK handle (@CelebrityUK), including #sponsored.
What penalties might there be if you breach this contract? Well you may find out some time down the line when the company makes them up – that detail is covered by this:
10. Winner may be subject to additional terms and conditions. Promoter will notify the Winner of the same from time to time.
Yes this is actually a competition.
Well let me think this through……I get a cruise, it’s not all paid for (there are ‘extras’ that I must pay for), I must blog, Tweet, Instagram (and more, unspecified things), I am expected to take photos and hand over all rights in my work, I must obtain model releases, and permissions from parents for under 18’s, I must allow my personal comments to be used as the organizers see fit, I should not expect credits for the use of the work, but must credit the company when I use it, and these terms may later be added to in some ways yet to be decided, and there’s other terms but I’ve no idea what they might be, but I’ve agreed to them anyway……
Hmmm…..is this a good opportunity to have a relaxing holiday……….I’ll need to think about this for a moment……….
All that aside, and more seriously, what I’m curious about is whose ‘jurisdiction’ takes precedence when submitting work through Instagram, Twitter or Facebook, because all these companies have fairly draconian t&c’s that pertain to submitted material. Have Celebrity Cruises somehow managed to circumvent these terms? Or might entrant’s work be subject to those three companies’ individual t&c’s in addition to Celebrity Cruises terms? (I have no idea.)
This could potentially lead to conflicts of interest with Celebrity Cruises usage: if the successful winner’s images appear somewhere else, say for instance endorsing a rival cruise company, licensed by Instagram or Facebook, or even simply sub-licensed for use and reproduced without the contractual obligation of a credit to Celebrity Cruises – whose liability is it? And of course everything that the company asks you to submit on a daily basis as part of the competitions t&c’s on their behalf to various sharing platforms immediately becomes the ‘property’ of many of them, again further obscuring where ‘ownership’ (and absolute liability) lies. Although my guess is that the various t&c’s will ensure ‘liability’ remains with the entrant.
Among the photographers who’ve agreed to be the judges and be associated with this are ones I’ve a great deal of respect and admiration for, Stuart Franklin, Ian Berry, Art Wolfe, Massimo Vitale and Oliver Lang. I’m surprised that individuals who’ve earned their livelihoods through control of their own image rights should endorse such a ‘competition’. It may be the case that they themselves have neither been informed of the terms by Celebrity Cruises nor carefully scrutinized the small print closely and will be very surprised when they discover what they are involved in promoting.
Don’t get me wrong, I like competitions, I actually enter them. They are fun, give opportunities to have one’s work judged against one’s peers and maybe gain both exposure and a nice prize. But I avoid the ones that are simply being run to harvest images for which the organizers pay relatively little, but stand to gain a considerable amount, and in the process deprive a professional of a working opportunity. This strikes me as being one of these. And with each such event the notion of creator’s rights are further eroded, and the market for young and emerging talent is further diminished. And it’s the latter that concerns me the most: there are a considerable number of young professional photographers for whom such an opportunity would be a welcome step up the career ladder. And with careful agreement over image rights that benefited both parties in the longer term, they might even be prepared to do it for only a modest fee. Everyone wins.
What perplexes me is that this whole ‘competition’ could so easily be run so very very differently, and in a way that promotes and respects intellectual property rights, rewards creators, and gives Celebrity Cruises the really warm glow of satisfaction at being seen to celebrate and underpin the creative industry in the UK.
I’m not sure what’s required to make organizers of such events realize they could manage them more equitably and get loads of really positive publicity as a consequence.
Some of you may judge this a reasonable ‘opportunity’ to win a valuable prize and are happy to enter your work, and good luck to you if you do so, and if you’re a runner up the Magnum workshop will no doubt be a great opportunity, but I think I’ll give this ‘competition’ a wide berth.
For an overview of the various terms applicable on different social media and sharing sites this is a useful reference: ‘Who Really Owns your Photos In Social Media’
Post update Friday 25th October: Response from Celebrity Cruises
”
“Hi John,
I’m Adele, the UK Online Marketing Manager for Celebrity Cruises.
I want to clarify that the intent of this competition has never been to exploit any entrants or winners. We completely appreciate your point of view on the issues you highlighted. As a result, we have changed the T&Cs to ensure that they are fair for all participants and winners:
Regarding point 11., the winner will now grant non-exclusive use to their pictures to Celebrity Cruises UK for a period of 12 months. This period is necessary for us to ensure the promotion of the winner and the competition. The image rights were always a license for Celebrity Cruises UK not actual ownership. We will also credit the winner when using the pictures – unless they do not want us to use their name.
Regarding point 9., this exclusively applies in the context of talking about Celebrity Cruises UK. This isn’t a way for us to take credit for the work but rather to avoid legal issues: there was a twitter case where a celebrity who was paid by a supplier to promote the brand got into trouble because the sponsor reference was missing. It is questionable whether the free cruise received by the winner in this case amounts to payment but we want to stay on the safe side as it could be seen as equivalent to payment. Outside of this context, the winner will of course be free to use the images as they please without having to credit Celebrity Cruises UK. We have now made this clearer in the T&Cs.
Regarding point 10., this is something that our legal department puts in as standard. We realise that it is not appropriate in this case, so we have removed it.
In addition to this, I also want to clarify that there is no charge for disembarkation at any of the ports of call. The excursions referred to are guided tours, which often give the opportunity to go further inland, but these are at extra cost to all passengers, not just our winner. The winner is of course free to disembark at all ports of call and spend the day ashore as they please.
I hope this clarifies the key issues and addresses your concerns – I can assure you that we are running this competition with the best intentions in mind and are sensitive to your feedback and the feedback of the wider photography community.”
Adele Hegarty, Online Marketing Manager, RCL Cruises Ltd (Royal Caribbean International, Celebrity Cruises & Azamara Club Cruises)
Discussion (12 Comments)
Totally agreed!
A while ago our local Ikea also had a contest for photography. The winner was supposed to transfer all his IP rights to IKEA. However, he would get a print of his image on canvas :’)
Hi Marianna – its very very common! You just need to read the small print. Some big companies are doing this on a regular basis. It sucks! Just point it out on social media and see if they step back – I’ve tried it and sometimes they do. This type of behaviour is not illegal, but its certainly immoral.
At this point maybe you should start hosting an annual award and competition listing of the most shameless and exploitative photo competitions. I’m sure other readers could send in their personal favorites, as this will certainly continue be an ever growing field of greed and subterfuge.
This one literally comes rife with images of: piracy, forced labor on the high seas, human trafficking, image trafficking, copyright violations, international human rights violations… And that last sentence is no less ridiculous than the vague and contradictory legalese they employ in their Machiavellian ruse of a ‘contract.’
Hi Stan – thanks for the restrained response! Aye a list would be useful! Although EPUK already keep tabs on some of this stuff.
I’ve actually seen one with worse terms than this which went into great detail about how although you were handing over ALL rights and could not use the images for your own use after entering, you expressly agreed to pay for any and all legal costs arising from the organizers use of your images, even when they’d sold them to a third party and the third party use resulted in some liability to the organizer!
Bit much. Surprised at the calibre of Judges in this, and one wonders if they were in fact aware of what they are endorsing.
Report it to the Artists Bill of Rights:
http://artists-bill-of-rights.org/competition-lists/rights-off-list/
They flag up lousy competition terms and name and shame the organisers.
There is already a list of good and bad competitions. Many companies have set up shonky competitions, but yes, agree with the writer of the blog post that the people who gain benefits from being associated with competitions like this need to be more moral about the terms and conditions.
http://artists-bill-of-rights.org/competition-lists/rights-off-list/
I am a judge in a travel photography competition and a often asked tojudge other competitions. The first thing that I ask is to see the terms for people entering!
Shame on Magnum for not doing the same!
Hi John,
I’m Adele, the UK Online Marketing Manager for Celebrity Cruises.
I want to clarify that the intent of this competition has never been to exploit any entrants or winners. We completely appreciate your point of view on the issues you highlighted. As a result, we have changed the T&Cs to ensure that they are fair for all participants and winners:
Regarding point 11., the winner will now grant non-exclusive use to their pictures to Celebrity Cruises UK for a period of 12 months. This period is necessary for us to ensure the promotion of the winner and the competition. The image rights were always a license for Celebrity Cruises UK not actual ownership. We will also credit the winner when using the pictures – unless they do not want us to use their name.
Regarding point 9., this exclusively applies in the context of talking about Celebrity Cruises UK. This isn’t a way for us to take credit for the work but rather to avoid legal issues: there was a twitter case where a celebrity who was paid by a supplier to promote the brand got into trouble because the sponsor reference was missing. It is questionable whether the free cruise received by the winner in this case amounts to payment but we want to stay on the safe side as it could be seen as equivalent to payment. Outside of this context, the winner will of course be free to use the images as they please without having to credit Celebrity Cruises UK. We have now made this clearer in the T&Cs.
Regarding point 10., this is something that our legal department puts in as standard. We realise that it is not appropriate in this case, so we have removed it.
In addition to this, I also want to clarify that there is no charge for disembarkation at any of the ports of call. The excursions referred to are guided tours, which often give the opportunity to go further inland, but these are at extra cost to all passengers, not just our winner. The winner is of course free to disembark at all ports of call and spend the day ashore as they please.
I hope this clarifies the key issues and addresses your concerns – I can assure you that we are running this competition with the best intentions in mind and are sensitive to your feedback and the feedback of the wider photography community.
Adele Hegarty, Online Marketing Manager, RCL Cruises Ltd (Royal Caribbean International, Celebrity Cruises & Azamara Club Cruises)
Hello Adele – thanks for replying, and on behalf of Celebrity Cruises, clarifying your position. I note and appreciate that you’ve change the T&C’s also.
As you’ll have gathered from my article there are many in the photographic community who take a dim view of these ‘rights grab’ competitions. I’ve contacted numerous organizations regarding their unreasonable terms and, to be fair, it is invariably the legal dept who are responsible, rather than the customer-facing folks.
Entrants are required to obtain releases for subjects contained in the images being submitted for the competition:
“c. the permission of all persons featured in any image(s) uploaded have been obtained including parents/guardians of children under 18 years old (and any such parents/guardians have complied with any legal requirements necessary to authorise use of the image(s) of the children in accordance with these terms and conditions to use their image for the purposes described in these terms and conditions. We may contact you and/or persons featured to verify this; and
d. the image(s) do not infringe any rights, but not limited to, copyright of any third party or any laws including privacy laws.”
and this is understandable. Presumably to satisfy the legal dept.
However is it the case that the ‘winner’ will also be required to do this?
It is a considerable amount of work to obtain and collate Model Releases and Parental Permission for the images taken featuring other guests. Or do your guests sign a waiver on embarking that relinquishes their right to privacy?
What is the legal position regarding non-guests encountered onshore on an excursion and whose images may be used to promote a company (yours) they have no connection with?
I ask, not to be difficult, but to simply flag up the problems I’ve had to contend with in undertaking work in similar situations, and because I’m curious how you are approaching this matter.
I have to confess I’m rather surprised by this statement:
“It is questionable whether the free cruise received by the winner in this case amounts to payment but we want to stay on the safe side as it could be seen as equivalent to payment. “
Does this mean you will be recommending that “to stay on the safe side” the ‘winner’ declares this ‘win’ for tax purposes as income? (ie ‘benefits in kind’)
Again I’m not trying to be difficult – this whole ‘social media’ and smartphone economy is throwing up new challenges every day – legal, ethical, practical and we can all learn from each other as such situations as this are teased apart and considered in closer detail.
Thanks again for your prompt response.
I hear that two of the Magnum photographers have pulled out having decided that this comp and Celebrity Cruises really are not something that they want to be associated with. I don’t know about the others.
I appreciate the response from Adele but it’s too little and still leaves many of the dubious terms in place. It still looks unfair and exploitative to me.
It’s not as if Celebrity Cruises couldn’t afford to pay proper rates to get professional quality work. If Celebrity Cruises want some good photos to promote their cruises then that’s great. But this penny punching, corner, cutting approach makes one wonder where else they shave the costs of using trained, reliable professionals. Maybe their next comp will be for a bit of free navigation or some maintenance on the lifeboats in return for a not really free voyage?
Thanks for the reply David. I’d not seen any comment re Magnum’s opinion on this competition’s t&c’s so it’s interesting to learn they’ve pulled out. Is that mentioned in the public domain anywhere?
I agree though that despite some tweaks its essentially the same offer with the same potential pitfalls for the ‘winner’.
One wonders when such organizations will wake up and realize that they can actually have their cake and eat it by being less ‘grabby’ and more collaborative with the professional community.
Thank you for taking interest in this competition, and for providing myself and the other judges the benefit of the doubt in the original article.
I had not been provided with the T&C at the time I agreed to judge. In future I will always ask to see these prior to the launch of the competition.
I have made the professional decision to remove myself from the judging panel. I made this decision despite the updated T&C and claims that there is nothing exploitative intended.
To be clear, I was not being compensated in any way for being a judge on this competition. I was asked to do several related tasks for no compensation, other than exposure. It turns out the exposure I received wasn’t professionally desirable.
I’ve needed to address comments on this article (which was shared) on several platforms, as professional photographers asked why I would support such undesirable T&C. My initial interest was only in what I hoped would be a high quality mobile photography competition. Mobile photography has been my area of practice for some time now and I enjoy the opportunities that it has provided both professionally and personally.
While the competition organisers believed that they addressed the issues you raised, they never indicated in any response that the judges were not aware of the T&C. I can only speak for myself, but I believe the other judges are also unlikely to have seen the T&C. To ensure clarity regarding my professional involvement I have removed myself and have nothing further to do with the competition.
As a result of this experience I have looked further into the Artists Bill of Rights and note that it provides a complete blanket disapproval of competitions that require submission of images via a social media platform. I think this approach is unfortunately out-dated. To quote a close professional and personal friend on the subject “the horse has bolted”.
So one final point I wish to raise is that in many responses I’ve seen from pro photographers is that these competitions are simply a cheap means to gather stock images for the brand. While images are an outcome, the business purpose I see for many of these social media based photography competitions is to create a relationship on these platforms between brands and their advocates.
Mobile photography as a medium is hugely participative and interactive, as people use the same device to create and consume images anywhere and at any time. These sorts of campaigns are still in their infancy, but are becoming more commercially viable as these platforms mature. The blanket disapproval of such competitions in the Artists Bill of Rights has no meaningful effect, and instead there will need to be new approaches and a greater level of awareness of photographer’s rights, especially as they become applicable to more and more people.
I’d like to thank John and the team here for their efforts in addressing these issues, I hope we can all work together to promote a better future for these new directions in photography.
Oliver – thanks for coming into this discussion. We really appreciate it when participants in the issues raised on the blog actually take the time to respond.
I appreciate the fact that you (and other judges) were in fact judging this ‘competition’ blind (ie not having seen the T&C’s), thanks for clarifying that. And also appreciate and greatly respect the fact you’ve resigned from the judging panel.
I’ll say upfront that I’ve not seen any of the discussion in other forums that you’ve alluded to, so my comments are uninformed by any other responses you may have made regarding this matter.
Ok, you said:
“As a result of this experience I have looked further into the Artists Bill of Rights and note that it provides a complete blanket disapproval of competitions that require submission of images via a social media platform. I think this approach is unfortunately out-dated. To quote a close professional and personal friend on the subject “the horse has bolted”. ”
I’m in complete disagreement with you on this. (maybe no surprises there!)
The ‘horse may have bolted’ but the reins are firmly in the grip of a variety of legal teams, not the least of which are those employed by the social media platforms. My unease is with the fact that ALL the T&C’s I’ve seen place ALL the legal liability for just about anything and everything that could conceivably arise as consequence of image use, on the shoulders of the (often, but not always, naive) punter whose work is being harvested. My concern with intellectual property being uploaded for ‘competitions’ via social media is that rights are also transferred to the social media platform, and this may result in a conflict with usage that occurs as a consequence of the rights also granted to the ‘competition’ organizer. This could be to the serious disadvantage of the originator of the image who has tacitly accepted liability in the two sets of T&Cs they have agreed to, but may not even have read.
“So one final point I wish to raise is that in many responses I’ve seen from pro photographers is that these competitions are simply a cheap means to gather stock images for the brand. While images are an outcome, the business purpose I see for many of these social media based photography competitions is to create a relationship on these platforms between brands and their advocates.
Mobile photography as a medium is hugely participative and interactive, as people use the same device to create and consume images anywhere and at any time. These sorts of campaigns are still in their infancy, but are becoming more commercially viable as these platforms mature.”
I’m interested that you use the words above in bold which are all about ‘business’. Now where I’m puzzled is what the status of a competition winner actually is.
Take the Celebrity Cruises one for example. A ‘competition prize’, as it is generally understood, is something one wins, enjoys and is a treat. The Celebrity Cruise prize was, whatever way you view it, a job – acting as a ‘correspondent’ being a social media mouthpiece, all roles that were clearly detailed in the T&C’s, but also various other roles that were not clearly stated, but all of it apparently ‘work’ on behalf of the cruise company and which the ‘winner’ was contractually obliged to undertake. The T&C’s made it abundantly clear that the winner was not going to be lying on a deckchair for two weeks, but acting on C.C’s behalf as a brand ambassador. SO….rather than describe this as someone being successful in ‘winning a competition’ I’d describe it as being successful in a ‘non-traditional job interview’.
What, I wonder, is the legal status of the ‘winner’ – in the event of some unforeseen incident arising as a consequence of their image-taking – say they lose their expensive camera/camera phone, are assaulted, cause an incident that has some serious impact on a proper fare-paying passenger, or impacts on a member of the public whilst they are ashore…….are they regarded as a member of the crew (an employee)? Are they a ‘customer’? Or have they some other status that can only be determined by a lawyer?
I’m sure a sharp lawyer in some litigation would carefully probe the ‘status’ of the ‘winner’ and would certainly seek to find the cruise company liable (they obviously have more money) and if the T&C’s confer all liability on the ‘winner’ they could find themselves in some deep legal/financial trouble. What would the ‘winner’s’ insurers say to a claim made against them for something that has arisen, to all intents and purposes from ‘work’, however it’s dressed up as ‘a competition’. Of course these are speculative scenarios but the bottom line for me is the ‘winner’ – the originator of the images – is the one left with the liability whatever transpires. Never mind losing the full control over their intellectual property.
And as this was apparently NOT a prize on offer but an offer of work as a ‘brand ambassador’ – must the ‘winner’ declare this for tax purposes, as ‘payment in kind’?
It’s rather revealing that Celebrity Cruises have made one of the terms –
“2. Travel insurance must be purchased before travel. Winner is required to ensure both passengers are adequately insured.”
But what kind of insurance? What is ‘adequate’ in this scenario? Simply to have ordinary travel insurance? Or maybe Contractor’s Liability? What do they tell their insurer – I’m going on holiday? (not true). I’m going to work for Celebrity Cruises? (C.C’s. would argue that’s not strictly true). All a bit of a grey area as far as I can see.
Now I don’t expect you to be able to provide any answers to these questions, I’m simply exploring aspects of this that puzzle me.
As you rightly point out all of this social media/brand ambassador/photo sharing business is still in its infancy, but if as you seem to imply this is the way that the market is moving then it may only be a matter of time before the tax and liability implications of all of this start to become clear, and it may just be that the grass is less green on that side of the fence than many have imagined.
There’s a good article on APE that underlines some of this, and most of it is contained in the title: ‘When photographers become the media buy, ad agencies get the deal of a lifetime’
There’s a line there:
“This summer Mercedes hired 5 Instagrammers with the mobile-centric agency Tinker Street to shoot their own road trip in the new CLA class - the person with the most likes at the end of the trip won a 3 year lease on the car.”
They were “hired” but they “won” the lease on a car. If they were hired, the car was payment? Did the winner have to declare the Mercedes lease as a taxable ‘benefit’? Not enough information there for us to know for sure, but its perhaps another grey area that will no doubt be clarified in due course, but the outcome may come as a surprise to the ‘winner’. Of course all of this may already have been clarified in various aspects of personal taxation and I’m playing catch-up so happy to be steered by your knowledge and experience.
My overarching interest in all of this is – where is the benefit to the photographer. Does all this stuff offer a proper business opportunity that respects creative endeavour and provides a reliable income, or is it yet another way for big business to exploit people’s creativity and gain financially from it.
I’m curious about your ‘business model’ but have refrained from posing questions that you may not be comfortable responding to on an open forum for all sorts of reasons. But I’d be interested to hear any observations you might want to offer.
Again, many thanks for your participation, and I agree it’s only through getting in about some of this stuff and teasing it apart, that we can start to try to influence the ways in which the new media landscape develops.