You Decide: Does a National Portrait Gallery Contest Trample Artists’ Rights?

The National Portrait Gallery has announced a portrait competition that has stirred the outrage of at least one photographer (who told us about it) because of the rights transfer terms of the contest rules.

Rights transfers in photography contests are often a lightning rod, but the rules of this contest are more complicated than “we own everything you submit.”

The contest is the triennial Outwin Boochever Portrait Competition, named for a wealthy patroness who endowed the competition. The Portrait Gallery is accepting entries in the form of portraits in all media (painting, drawing, sculpture, prints, photography and electronic and digital media) made after January 1, 2010.

A panel of jurors will select an overall winner, plus other entries for an exhibition in 2013. The grand prize winer will receive $25,000 in cash, “and will have the opportunity for a separate commission to portray a remarkable living American for the Portrait Gallery’s collection,” according to the contest announcement.

Let’s cut to the fine print about rights in the contest rules. The first paragraph applies to all entries:

Ownership of all portraits submitted for the Portrait Competition, including copyright, will remain the property of the artist, but it is a condition of entry that the artist shall grant to the National Portrait Gallery the irrevocable, royalty-free, worldwide right to use and reproduce all exhibited works for the exhibition publications, public programs, publicity, promotion, research, postcards, prints, posters, and other products, in all formats, including but not limited to electronic distribution on websites and social media accounts maintained by the National Portrait Gallery and the Smithsonian, in connection with the Portrait Competition and resulting exhibition. Distribution can occur either through printed or electronic media.

Plain English translation? Artists keep copyright to the entries they submit, but agree to give the National Portrait Gallery rights to use the works in any and all promotions for the competition and exhibition, in print and online. That could include the sale of posters, postcards and other products featuring the works at the gift shop and on the NPG web site, without compensation to the artists.

The second paragraph of the “rights” section of the rules applies only to the grand prize winner, and specifically to the commissioned portrait he or she has the option–but not obligation–to create for the National Portrait Gallery:

The winning artist will be required to transfer ownership of, and assign all rights, including copyright, in the commissioned portrait to the National Portrait Gallery, but the National Portrait Gallery will grant the artist a license to reproduce the portrait for use in his or her portfolio for noncommercial, portfolio purposes. The commissioned portrait will be submitted to the National Portrait Gallery’s Commission for approval of its inclusion in the National Portrait Gallery’s permanent collection.

Translation: the National Portrait Gallery owns copyright to the commissioned portrait created by the winner (but not to the portraits submitted by the winner to enter the contest in the first place). All the winner is allowed to do with the commissioned portrait is display it in his or her portfolio.

In short, the NPG contest rules pertaining to copyrights fall somewhere between “we expect and get nothing from contest participants” and “we expect and get everything.” It should be emphasized that participation isn’t compulsory, and the grand prize winner has no obligation to accept a commission (they get $25,000 plus an “opportunity” for a commission, for an additional fee, according to the rules).

Should we be outraged? Are participants giving up any more promotional rights than other competitions typically demand? Also, clients often ask for rights transfers as a condition for a commission, and there’s no law against it. Should we hold a US government institution to a different standard, and if so, why?

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