Friday, 01 February 2019 13:57
When Apple makes a move, the world notices. Such is the power of a near-trillion dollar company.
It didn't take long for the photographic community to notice something was amiss with Apple's initial announcement of its 2019 "Shot on iPhone" Challenge whose terms required winning entries to be assigned to Apple for exclusive use for the duration of that work's copyright.
Apple responded by adding additional language in a press release of Jan. 22, 2019:
"Apple believes strongly that artists should be compensated for their work. Photographers who shoot the final 10 winning photos will receive a licensing fee for use of such photos on billboards and other Apple marketing channels."
The photo press announced the Apple "fix" but for us the confusion continued.
For instance, the sentence preceeding the above quote, while still referring to non-exclusive usage for non-winners, states:
"If your photo is selected to be featured on a billboard, you further agree to grant Apple exclusive commercial use of the photo for the life of the license."
Syntactically, this means if you're chosen for use on a billboard, and are not one of the final 10 winners, you automatically grant Apple exclusive use for the "life of the license". Only "the final 10 winning photos" receive a licensing fee.
Apple does make it clear, but only in the Offical Rules (pdf), that 10 winning photos will receive a licensing fee. However, in the press release: "the final ten winning photos" could mean there are more winning photos than the final ten. Much better is: "Apple will choose ten photos that will be the Challenge winners." With Apple's surprising oversight in their initial rules release (requiring exclusive use for the term of copyright without fee), it makes sense to carefully parse the meaning of the revised rules.
Free use of non-winning images has huge marketing potential for the iPhone
Non-winning images can be used to promote iPhone's capabilities, not primarily the "Challenge" itself, royalty-free, even on billboards and in stores, for a year via Apple's massive media reach. You are giving enormous value to a near-trillion dollar company for free. To repeat, from the press release:
"You retain your rights to your photograph; however, by submitting your photo, you grant Apple a royalty-free, world-wide, irrevocable, non-exclusive license for one year to use, modify, publish, display, distribute, create derivative works from and reproduce the photo on Apple Newsroom, apple.com, Apple Twitter accounts, Apple Instagram (@Apple), in Apple retail stores, Apple Weibo, Apple WeChat, on billboards and any Apple internal exhibitions. Any photograph reproduced will include a photographer credit."
(Ed. note: You'll see now that Apple has one-year non-exclusive use in addition to "exclusive commercial use…for the life of the license" from an earlier quote above. Someone at Apple is not taking this seriously!)
Winners will receive a licensing fee but can they negotiate what that will be?
"…providing a Submission constitutes the winner's consent to give sponsor…exclusive use…for the legal term of protection of copyright".
Will the licensing fee that the 10 winners receive be negotiable? That is doubtful, but you will be able to decline "winner" status. You then forfeit the "prize", or course, but can still be marketed non-exclusively for a year. (After your image has been marketed, non-exclusively, on all Apple's channels for a year, how much do think it would be worth to license that image to a different venue?)
How much is a world-wide buyout for the legal term of coyright?
U.S. copyright terms are 70 years after the death of the photographer or "95 years from publication or 120 years from creation, whichever date is earlier", if Apple considers this a "work for hire", as arguably, it is. Therefore, 95 years would be the low number for the copyright term.
Whether Apple will exist throughout the 95-year-plus term it is buying, no one can know. The main question, however, is what is Apple willing to pay for that right?
Reddit user, TMahlman, posted that even $10k would be chump change.
Doing the math
What is the value that a near-trillion dollar company with its huge marketing muscle can realize over the life of a copyrighted work in its worldwide marketing efforts? To start, think about the enormous size of Apple's marketing budget.
Let's use the low term of 95 years and a modest $10k fee.
$10,000 divided by 95 years = $105.26/yr.
How about $100k? That would be a $1052.63/yr fee. Of course the value of the image will decrease significantly over time, but you get the idea. This worldwide use in every conceiveable "media or technology now known or later developed" is worthy of a significant sum.
With Apple's market power, this buyout could set the benchmark for other copyright buyout fees
Whatever Apple pays for the winners' buyout, it will have all the potential of becoming the upper benchmark price for all copyright buyouts going forward. What with the depressing state of the photography market today, that amount could be as little as $4000, maybe even $1000?
With all due respect, we must assume that many a photographer, whether amateur or pro, would accept nearly any amount to receive such a huge "Like" from Apple. That and a quick $1000 would make someone's day?
Entrants may run afoul of the Federal Trade Commission rules
The Instagram hashtag "ShotoniPhone" has at leasst 6.4 million posts, although only a portion represent postings during the contest period. What you need to know is that according to the F.T.C.'s website, posting on Instagram with #ShotoniPhone during the contest period assumes you are posting with the expectation of a possible prize and the #ShotoniPhone might be considered an iPhone endorsement requiring disclosure.
"…being entered into a sweepstakes or a contest for a chance to win a thousand dollars in exchange for an endorsement could very well affect how people view that endorsement…It’s always safer to disclose that information." FTC Endorsement Guidelines
No credit apparently required for entrants' images given to the "Media"
"By using any of the media included in this zipped file, you agree that the use is personal or editorial and non-commercial. Images and video cannot be altered or modified in any way, in whole or in part, that disparages Apple."
You can alter the images as you wish, as long as you don't disparage Apple. What the above terms DO NOT state is that:
Because there is no settled definition of "non-commercial" in today's internet publishing world, Apple is basically allowing anyone to use the "Media" images in nearly any way they wish, even to remix, as long as they don't "disparage" Apple. Not even Creative Commons offers a license that covers such privilege.
We hope Apple intends to clarify that usage is only to be in direct connection with the promotion of the competition, and requires photographer credit in all instances.
In the kindest sense, the competition terms are confusing because of differences in the official rules and the revision in the press release. It could well be that Apple didn't carefully review how its rules read in totality. However, no one should guess as to Apple's intentions. The language as published is what counts.
Apple will obviously remain on our Rights Off list until further notice.
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who are pro-active in defending photographers rights.