Of Immediate Concern

Want to see your pictures in print?

Yes?

GREAT! –  because duckrabbit is toying with the idea of running a photo competition and to print the winning images online and in a magazine, with a small prize for the best one. Before we launch it though we thought we’d run the concept past you for some informed feedback.

So here’s the deal: you send in your pictures (and you’ll need to include a 70-word story about each individual picture too.)

We will not pay you a fee if your image and words are published, but it is a fantastic opportunity to see your photographs in print!

We take your pictures and in return you grant us non-exclusive rights to do what we want with them, including commercial use, and you agree that the provision by us of the opportunity for you to give them to us is sufficient reward.

Yes that’s right, our generous gesture of providing a facility for you to give your work to us is your reward!

We thought you’d like that gesture.

Now if we think that none of the pictures are REALLY good, we wont award that prize we mentioned earlier, but we’ll still keep your images and the rights we previously described, and publish them anyway, so you still get to see them in print or online. Good eh! I know, it’s a pretty wizard wheeze. Almost, dare I say it…philanthropic!

Now, as we only want non-exclusive rights you can still use your pictures yourself, but you will have to agree that we may sell them to others as we see fit, and you’ve also got to agree that you will not use your pictures in any way that conflicts with our use (which might be commercial). So……you might find that if you DO actually use them in the same specific market as we do, and we deem it to “impair” our use, that such use will be considered to be a breach of our agreement and you might be liable to….er…maybe compensate us, but we’re not sure so we’ll cross that bridge when we come to it.

Oh and we also reserve the right to change the Terms & Conditions too, if we want to, so don’t get too hung up on them just now because they might be different next week, but you’ll still be bound by them – you’ve got to agree to that too.

We know, we know, it’s a lot to take in, but that’s ok this legal malarkey is complicated so don’t worry too much just remember the bottom line is that you might get to see your pictures in print – and how cool is that!

Now, does that sound like a good deal or what! We think it’s totally genius. We get a stack of pictures. You get the warm glow of satisfaction from seeing your pictures in our website and magazine. And we get lots of opportunities to use them in any other ways we want, including selling them to others. And if there’s any problems you might even get to pick up the tab for our legal defence. Yay. We love it!

But (aye, we know, there’s always a but!) we must confess, we didn’t come up with this idea ourselves. We’ve copied it.

From the BBC.

Well from their BBC Wildlife magazine and website publishers The Immediate Media Co. who are licensed by the BBC to do all this stuff on their behalf, apparently.

So that’s ok then isn’t it?

Here’s the real deal:

Here’s a link to the competition rules (link), and this is the specific ‘no prize’ bit:

18. The promoter reserves the right to withhold prizes if, in the opinion of the judges, the quality of entries falls below the standard required.

So you could in effect enter with the understanding that a prize is on offer. But if its decided nothing is good enough to warrant actually handing it over, it wont be. But they still keep your work (and publish it). Hmmm.

Now what do you think the BBC ‘s responsibilities actually are with regard to their dealings with their ‘customers’? Here’s their Code of Conduct specifically covering competitions:

So, as they say themselves:

When the public engages with us through interactivity they will be treated with respect, honesty and fairness. We will handle all interactive competitions and votes with rigorous care and integrity.

BBC competitions and votes will not be run in order to make a profit. The only time BBC competitions or votes will be aimed at raising funds will be for a BBC charitable initiative.”

Does taking (some of) the intellectual property rights in images (which then become a commercial asset of a BBC licensed company, and can be sold for profit, in return for a prize that may be withheld) breach these guidelines? Duckrabbit is not a solicitor so we have no idea. But you don’t need to be legally trained to comprehend the morally dubious nature of this ‘transaction’.

The Immediate Media Co. is licensed by the BBC to undertake all this on their behalf, and here’s their T&C’s regarding what they want (and a quote of our favourite section):

“……and in consideration of us making available to you the opportunity to upload any user Contribution (which you acknowledge as a sufficient benefit to you), you irrevocably and unconditionally grant us free of charge a non-exclusive, worldwide, royalty-free, sub-licensable licence of the entire right, title and interest in and to such user Contribution…..”

 

Yes you read that correctly: “in consideration of us making available to you the opportunity to upload any user Contribution (which you acknowledge as a sufficient benefit to you)” .

We’re perhaps incredibly dim and missing something fundamental here: but in what conceivable way is a benefit obtained by giving something away and receiving  nothing in return?

Now consider for a moment Section 14 above: are you wondering what might constitute an action on your behalf that could conceivably  “interfere with or impair” Immediate’s rights that you have so generously granted them?

Well, how about you offering your work for payment (or even for free!)  to a third party, a party to whom Immediate also want to sell your work? Yep that would probably do it. (But remember duckrabbit is no legal genius so this is only our face-value interpretation and opinion.)

Note in Section 13 above the word “commercialise” – which implies they will sell, and so it follows that anything that you do with your work which conflicts with their attempt to make money from your work is probably a conflict.

So what might happen if you did sell to a competitor and it all went pear-shaped some time later when the competitor finds out that Immediate were also using the image in a way that conflicts with their use (we’ve seen this happen) and decided to sue Immediate (or even you, although you did not know that Immediate were going to use it when you sold the-right-to-use in good faith to the third party)?

Ah don’t worry, Immediate have covered themselves on that score too:

Simple interpretation:  you pick up the tab.

Oh and they have a Privacy Policy too. Here’s what the actual competition T&C’s says:

 

Now you might imagine that the word ‘Privacy’ in ‘Privacy Policy’ er….suggests that you might expect….some….privacy perhaps?

Well sorry to get your hopes up. The Immediate T&C’s are rather less concerned with your privacy. In fact you have very little it seems:

Yep they even want the rights to your name, biographical details and everything else AND in fact any information that they retain about you is “considered non-confidential”.

There’s a bit of confusion evident in all of this though.

The ‘Your Photos Terms & Conditions’ for the competition (here) makes no mention of the potentially more draconian Immediate Media Co. Terms and Conditions (which are here). But the page on which the Your Photos competition T&C’s are written has at page bottom (here) a link directly to the Immediate Co’s T&C’s page which makes it quite clear that anything submitted through their site is subject to the far more comprehensive terms hidden in the background. Which set of T&C’s take precedence is anyone’s guess. And by using their service you agree that the T&C’s may be amended whenever Immediate wish, and you’ll be bound by the changes, but if its the ‘hidden’ terms only that are amended, how will that affect users if the more visible terms on the competition page are not amended?

 

Do you think they are unaware of the implications for users of all this?

Nah – they actually use the word “exploitation” and make a clear distinction between “exploitation” and “use” in their terms (see (g) below) so that’s pretty definitive.

But of course we might be totally misunderstanding the intent of all of this, in which case we’d be delighted to be corrected.

As the BBC guidelines note:

BBC competitions and votes will not be run in order to make a profit. The only time BBC competitions or votes will be aimed at raising funds will be for a BBC charitable initiative.

Will The Immediate Media Co make any money from all of this, from “exploiting” user submissions for “commercial” gain as their T&C’s state it is within their rights to do? We have no idea, but if they do, maybe, just maybe they are making a generous donation of all the proceeds to Children in Need, and are getting the same warm comforting glow as the rest of us?

Anyone know?