Talkback: Ad agencies get creative with the small print

Blue Hat Advertising in Auckland has contacted tertiary colleges asking tutors to support their efforts to lift the profile of this 18-month-old agency through a competition called "Creative Currency".

It is presented as a win/win offer. Design, advertising, photography and art students have the chance to get their work published, universities and polytechnics get their names on a billboard and Blue Hat raises its profile.

Blue Hat is also offering prize money to 12 of the entrants and a month's work experience for the overall winner at a starting rate of $2.12 an hour (I am sure that this is a joke, but it's too subtle for me). They also get their work displayed on a billboard in Parnell.

Appealing as this offer seems, its terms and conditions contain this clause: "All entries, photographs, and other material submitted as part of this competition entry shall become the property of Blue Hat Advertising. Blue Hat reserves the right to publish them in whole or in part or use them in any way they think fit without permission of the entrant or payment other than the prize money tendered for such use but subject always to the provision of the Data Protection Act 1988."

In other words, by entering the competition all entrants forego their ownership, intellectual property and moral rights to the works they have created.

Blue Hat claims the right to own the original works, to alter them in any way it thinks fit, to publish, sell or give away this intellectual capital at any time, anywhere, and to otherwise use it in perpetuity without acknowledgment of the originator or payment to the creator.

The competition's terms and conditions give the sponsor permission to use entrants' work, in perpetuity, with impunity.

The Advertising Standards Authority points out that provided the terms and conditions are available to competition entrants, the agency has complied with the authority's code of ethics.

But, increasingly, individual designers, artists and photographers are being put under pressure to hand over their intellectual property and moral rights in favour of larger corporations. This isn't simply a matter of convenience for the organisers so they don't have to sweat the small stuff. Intellectual property is an asset; it has value and companies know they will increase their worth when they acquire it.

Andrea Vujnovich, director of governance and legal support at the Auckland University of Technology, has noticed more sponsorship offers coming to AUT with intellectual property strings attached.

Under New Zealand law, since competition entrants are not employees of a sponsor, nor are they being commissioned by the sponsor, the entrant's copyright and moral rights stays with them. Using terms and conditions is a neat way of wresting ownership from authors, but this violates the spirit of the Berne Convention for the protection of literary and artistic works.

Although there is a copyright battle going on in New Zealand, it is only the corporations that have the power to prosecute when their copyright is violated. The violation of the moral and intellectual property rights of individuals is often highlighted, but seldom successfully protected.

Neither the Communication Agencies Association of New Zealand or the Association of New Zealand Advertisers offer guidelines to their members for the running of advertising competitions.

In contrast, professional organisations representing individuals are indignant that competitions and sponsorship should contain such clauses.

Cathy Veninga, executive director of the Designers Institute of New Zealand, says: "No designer of any worth would pass over their IP in such a manner."

The Australian Society of Advertising, Commercial and Magazine Photographers has guidelines to promote a fair and equitable relationship between competition sponsors and competition entrants. These principles deserve to be adapted as an industry standard in New Zealand, so that competitions produce a genuine win/win environment for all concerned.

* John Malcolm is programme director for the Diploma of Contemporary Photography at Unitec New Zealand, Auckland.

* Talk Back explores the issues that matter to the media and the world of advertising, marketing, public relations and communications.