Attack in America

US Citizens Under Fire from their own Government

In the last week we turned the spotlight of the Bill of Rights Campaign on the US Federal Government and its agencies, the various State Governments and their Governors, as well as individual city and county administrations. All of these bodies are funded by the US public and we hoped to find that they demonstrated respect for the intellectual property rights of their citizens.

We were disappointed. We investigated over 40 competitions organised by all types of public sector body, from the federal government to the small city administration and discovered that in almost all competitons they were claiming free usage of the intellectual property rights of their own citizens.

Every possible type of rights grab was discovered, from claiming full transfer of copyright, waiving of moral rights, grabbing exclusive IP rights from children as young as 5, to unlimited and perpetual use of the public's creativity. Typically it is photographs that are sought by the US Government's contests, but we came across cases of poetry and other artistic works being eagerly sought.

Sometimes rights grabbing is intended, in other cases it is the unintended result of badly written terms and conditions. In either case the effect is the same, creative people lose their rights and the public is schooled to think they do not matter.

We have highlighted a few of the cases below followed by a complete list of the various US public bodies we investigated.

Exclusive Rights from Young Children- Nationally

The US Fish and Wildlife Service (USFWS) is the US Government agency responsible for the conservation of fish, wildlife, plants, and their habitats. It is one of the bureaus responsible to the US Department of the Interior.

Each year the USFWS run a national art contest administered by the the Junior Duck Stamp Conservation and Design Program. It is open to students in grades K to 12 attending public, private, or home schools in the United States and US Territories. In the US grade K (Kindergarten) is for children aged 5-6, grade 1 are aged 6-7, and so on to grade 12 representing ages 17-18.

The national winner of this contest will have their artwork printed on the Junior Duck Stamp (JDS). This stamp is sold by the US Postal Service and Amplex Corporation for $5. The entire proceeds are used to fund the environmental education programs, award the students for their work, and market the JDS program.

There is much that can be applauded about this contest, such as entries being returned to the student according to the timescales and arrangements set out in the requirements, and the destruction of unclaimed entries.

Unfortunately the terms and conditions on the entry form require each and every child who enter this contest to -

"grant exclusive rights to the U.S. Fish & Wildlife Service and its designees to use, alter, copy, publish, and display my artwork for reproduction and promotional purposes as they see fit without compensation to me, including the use of my photograph if taken at related Junior Duck Stamp program function or submitted to a state or national coordinator."

Why is it necessary for every child to grant exclusive rights when there is only one winning image published on a stamp. Why exclusive rights at all? Surely the USFWS cannot be fearful that a proud parent may publish their child's artwork on a greetings card to send to frends etc. Nor can anyone else publish a stamp to compete with the US Postal Service.

The terms and conditions on the entry form are unarguably a rights grab. That children have to sign a form granting exclusive rights to use their artwork to a bureau of the US Government is, in our opinion, shameful.

Grabbing Copyright - New Hampshire

New Hampshire, also known as the Granite State, prides itself on the range of arts and culture events, as well as the programs and sites it lists on its Arts and Culture website page. The Governor of New Hampshire is John Lynch and his Facebook page has some detail about his life and background. John Lynch has served in a variety of roles in both the private and public sectors.

At one time, according to the Governor's own website, he served on the board of the New Hampshire Capitol Centre for the Arts. It is reasonable to assume therefore he has a good grasp of the importance and value of intellectual property rights.

He may be shocked to find out that his own administration is ran a copyright grabbing photography contest entitled "NH Dream Vacation Photo Contest 2010" which closed for entries on 6 September 2010. In this contest all the entrants transfer their copyright to the New Hampshire Division of Travel and Tourism Development. This is part of what the competition rules say -

"SUBMITTING AN ENTRY IN THIS CONTEST CONSTITUTES ENTRANT'S IRREVOCABLE ASSIGNMENT, CONVEYANCE AND TRANSFERENCE TO SPONSOR OF ANY AND ALL RIGHT, TITLE AND INTEREST IN THE ENTRY INCLUDING, WITHOUT LIMITATION, ALL COPYRIGHTS."

Surely the Governor of New Hampshire, a man who served on the board of an arts institution, has not personally approved such rules? We hope concerned US citizens will complain to John Lynch to seek his personal views of these contest T&C's and to urge him to ensure future contest T&C's comply with the Bill of Rights for Artists.

Grabbing Copyright - City of Cayce, South Carolina

Anything a state such as New Hampshire can do can be done by a city. The Mayor of Cayce is Elise Partin and in the freetimes is a story about her running for re-election as Mayor.

During Elise Partin's time in office as Mayor the city ran a photography competition, the City of Cayce Photo Contest, with the aim of harvesting photographs from its citizens for a new 2010-2011 citizen's calendar. According to the rules submission -

"further constitutes applicant’s assignment and transference to the City of Cayce of any and all rights, title and interest in the entry(ies) without limitation, including all copyrights."

During the election campaign for the position of Mayor we hope the citizens of Cayce will ask Elise Partin and any other candidates if they feel that grabbing Cayce citizens' copyright is ethical, and if not, what they plan to do to stop such practices.

The US Senator's Competition - Wyoming

In the course of our researches we were surprised to find that an individual politician had actually launched a competition of his own and invited all his constituents to submit entries to it. This competition was launched by Senator Mike Enzi of Wyoming.

The competition was announced on Mike's website where it is declared that the prize for the winner is that their photograph will be displayed on the Senator's website! On his Facebook page Mike says that 26 photos were submitted to the contest and the public can now vote on them.

This minor contest may not seem anything to be concerned about, that there are few entries, and that the Senator's intent is most likely honourable. However, it underlines our primary concern about rights grabbing.

At present anyone can launch a contest with any terms and conditions they like and there is no legislation setting out what is permissable and what is not to protect the public from attempts by individuals or organisations to exploit the public's IP rights.

Given his personal interest in running a photography competition we hope Senator Mike Enzi would consider championing the creation of such legislation on behalf of his constituents.

Orchestrated Rights Grab - Boston

Although not directly funded by the taxpayer the Boston Symphony Orchestra (BSO) is one of the leading cultural icons of the United States and it is right that we should look at how they treat other's intellectual property rights.

Founded in 1881 it is commonly referred to as one of the Big Five, the other four being the New York Philharmonic, the Chicago Symphony Orchestra, the Philadelphia and Cleveland Orchestras. BSO plays most of its concerts at Boston's Symphony Hall and in the summer months they play at the Tanglewood Music Centre.

In 2010 the Boston Symphony Orchestra launched the 2010 Tanglewood Photo Contest. The contest closed on 8 September 2010 having received 377 entries including this fine photograph. The terms and conditions of the contest grant Boston Symphony Orchestra unlimited use as follows -

"by entering the contest, you hereby grant to the Boston Symphony a royalty-free license to reproduce, distribute, and publicly display your photographs through print and electronic media. By submitting work, you also accept that the BSO can crop and correct your images to make them suitable for projection."

We are so disappointed that a leading cultural icon should think it acceptable to grab rights to unlimited usage of the public's creativity.

US Department of State

The US Department of State, responsible for foreign policy, led by Secretary of State Hillary Rodham Clinton, launched on July 7 2010 a worldwide photography competition entitled Democracy Photo Challenge. The contest challenges entrants to complete the phrase "Democracy is..." with a photograph.

According to the rules the entrants retain ownership of their photos, but they are required to grant -

"Contest Sponsors, participating organizations, and Platform Partner, with proper attribution through whatever means they deem appropriate, a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, and/or display the Photo Submission, in any media formats and through any media channels in perpetuity in connection with the activities and operations of the Contest."

It is unreasonable that all contestants must grant such rights without limit of time and the contest fails to comply with the Bill of Rights in this respect. It denies all entrants the return of their IP rights on expiry of a time limit and gives rise to concerns about policing usage in perpetuity. Who is going to do that? Will it be done at all? It is of further concern that all the following organisatons (18 in total) are all granted the same perpetual rights to use the images -

Getty Images, The Annenberg Space for Photography, Bridges to Understanding, Center for International Private Enterprise, International Center of Photography, International Republican Institute, International Youth Foundation, the Motion Picture Association of America, National Democratic Institute, NBC Universal, New York University-Tisch School of the Arts, One Economy, Recording Industry Association of America, TakingITGlobal, University of Southern California, the U.S. Department of State, Google and YouTube.

Almost 3000 images were submitted to this contest according to Google. We have checked all the winning images as currently displayed online but none of them have any embedded copyright metadata thus immediately rendering them orphans. We are unable to tell whether or not metadata was embedded in the images submitted or if it was stripped out on upload or subseqently. At the very least one would have expected the US Department of State to have ensured there was a caption that made clear that the images were the copyright of the photographer.

"Democracy is" respect for other people's intellectual property rights. Unfortunately the T&C's for this contest fail to reach the standards one would expect from such important part of the US Administration. The intent may be entirely honourable, the aims laudable, but the terms and conditions are too wide and in the fullness of time open to abuse.

In Conclusion

Regrettable we could go on. The City of Bellevue in Washington grabbed unlimited and perpetual use of photographs and poems (all ages welcome). The Nevada Division of State Parks and the West Virginia Department of Environmental Protection both launched competitions with no rules about the rights the entrants have to grant them.

The Maryland Department of Natural Resources do things a little differently from everyone else. They launched a contest that grabbed unlimited rights to use the entrants work but made the entrants pay at least $10 to enter the contest.

We would like to make clear that when it comes to rights grabbing from the public the US Government is not a special case as a glance at any of our lists will confirm. We have yet to encounter any country where the government always wholly respects the intellectual property rights of its citizens and refrains from abusing them. It is our impression in encounters with governments at all levels they they believe they are doing no wrong. They appear to believe it is right that the citizen should willingly relinquish his intellectual property rights when invited to do so by any agent of the government as if "it is for the public good".

Yet on the other hand these same governments have passed laws which give the public full and exclusive legal control of their intellectual property rights, as is required of any country which is a signatory to the Berne Convention. It is the essential foundation required to enable a creative economy to flourish.

However, governments almost always take steps to secure unlimited usage rights to creative content submitted by the public. We view such a practice as unethical, unjustifiable, and shameful, and that the solution is for legislation to be passed to prohibit such practices by any individual or organisation.

The Bill of Rights sets out guidelines for such legislation and we urge all governments to consider adopting its provisions.