Fair for Photographers?

Underwater photographers are abuzz about NAUI’s recent “Just Dive” photo contest, but not for the reasons you would expect. Photographer Mike Boom from Oakland, CA, told us why. “NAUI owns outright any image submitted to them for the contest, whether the image wins or not.”

In the contest’s website (www.naui.org/justdive.aspx) the sixth paragraph reads: “Submitting photos constitutes an agreement that the ownership of [sic] transfers to . . . and may be published by NAUI in any media without further compensation. By entering, you give NAUI the perpetual, exclusive rights to use the photo in any way, including but not limited to advertising and promotional use . . . No obligations, financial or otherwise, accrue to the previous owner/submitter of the photo(s) or the people in the photo(s).”

Says Boom, “It’s an old scheme used by organizations too cheap to pay for photos: Hold a contest to get a bunch of free photos and use them for marketing and other for-profit uses. They depend on entrants who are typically too naive to know what they’re giving up . . .NAUI ownership of every photo means not only that NAUI can use your photo for free to market themselves, but that you can’t enter that photo in any other contest, whether you win or lose. Although NAUI makes it clear they get ownership of every entry, they don’t make it clear what that means and don’t intend to.”

Why NAUI Wants All Rights

Boom and a few other professional photographers pressed Jed Livingston, NAUI’s marketing director, for details. Boom didn’t get an answer directly but he did pass on to us Livingston’s reply to a letter from Jason Heller, who runs DivePhotoGuide.com. Heller asked Livingston whether NAUI would be granting a license to use the photo. Livingston’s reply: “No, we are seeking ownership rights. Submitting a photo to the contest for consideration transfers ownership, and the originator is not able to resell or provide the image to another entity without NAUI’s written permission.

Heller considers these “abusive and overreaching usage rights.” Livingston replied, “You are entitled to your opinion, however, we are collecting images to exclusively use in future NAUI products and promotions, and we make clear that by submitting a photo you relinquish ownership and any right to future compensation.” Livingston wrote that the rules ensure that “any image we choose to associate with our brand, winner or not, will not circulate on the Internet, be used in a manner with which we might disagree, or be sold to the highest bidder once the exposure we provide adds value to the image.”

Heller told Livingston any worthy photographer will not enter if they read the rules, but Livingston replied: “There is no attempt to trick anyone into participating, and in the event all ‘worthy photographers’ choose to not participate, we will continue to operate our contest for those unworthy amateurs who want to try to win a prize or would like to see if their image is worthy enough to appear on a magazine cover or be included in the annual calendar.”

Livingston called us to say professional photographers are mostly angry because the wave of cheap, easy-to-use technology is threatening the old way they do business. “It’s one thing to offer an opinion, quite another to contact the contest sponsors we have relationships with, threaten them and bully them into withdrawing their support – that’s tortious interference. We’ve run this contest for six years and now they complain? We’ve had thousands of entries from people who see the rules and agree to participate. And none of our sponsors have pulled out.”

He says the reason NAUI uses the “all rights” clause is to make sure none of the photo entries are used in a way they don’t like. “Once we take an image, we don’t want to see it used by another competitor or see it in a marketing campaign we disagree with.” But why all rights for photos that don’t win? “It’s just simpler. Everyone reads the same agreement, we don’t have to reiterate anything, and we want to make sure everyone understands what they’re entering.” Livingston realizes professional photographers probably won’t enter. “Some entrants say, ‘I don’t send my best images but I’ll send my second, third or fourth best. I don’t mind giving those away.’ This is meant to spark an interest in photography, and if an amateur is sparked to become a professional photographer, then good for him.”

Amateurs versus Professionals

Clearly, divers who make money selling photos are perturbed, but at least 95 percent of the divers who take a camera underwater would never expect to sell a photo and would just be thrilled to see one published. After all, first place in this contest is a week’s trip on a Blackbeard’s cruise in the Bahamas, a party boat any serious photographer would never consider. So it looks to us like NAUI is targeting the amateur.

However, for professionals, the problem just isn’t the photo contest but what the Internet has wrought by democratizing published writing and photography to the extent that people who have been making a living at it now compete with the world at large - - and it’s tougher to make a living. Today, anyone can be a “published” writer or photographer on the Internet. Newspapers like USA Today and the San Francisco Chronicle publish articles by “content mills” like Demand Media and Associated Content, which provide content by paying rock bottom rates. They pay an average of $15 for a 500-word article, so househusbands with a B.A. in English watching the baby as their full-time job crank out a piece a day for something to do. To the professional writer, this is not peanuts, not even peanut shells, given the hours of researching that goes into an article. Some publications pay nothing - - ads on Craigslist.org offer writers a “chance to build up their writing portfolio” or “get the thrill of seeing their work published.” Photographers get the same offers.

Nonetheless, professionals are not happy with NAUI. “Totally unbelievable,” says Tony Bliss, who runs AquaQuest Publications. “One of the problems facing serious underwater photographers is that there are so many amateurs that would do anything to get their photos printed that they give them away. That, of course, reduces the ability of serious professionals to make a living.”

Photographer Davis Haas says it’s not just NAUI doing the all-rights lowballing. “I was a consultant at two PADI Total Submersion events and despite nice conversations with PADI employees about how I’d like to provide images, they want everything for a pittance. . . . Pay you a lowball amount for a one-time fee and buried [in the fine print] is you signing over practically all rights to your own photos.”

Amos Nachoum says, “That is just unheard of . . . the good part is that NAUI made their rules public . . . [but] it is sad NAUI has to take such an extreme action to get images to promote the sport. . . . it is their decision and they will have to live with the feedback. . . . as well as with the quality of the images they may receive, which is likely to be very low and amateurish. No semi-pro or professional photographer will touch it.”

Bonnie Pelnar, owner of the dive marketing firm Under Watercolours, told us, “ You don’t even have the right to put it on your website or Facebook page.” Pelnar contacted NAUI to find out the truth and was told, “We’ve been doing this for years and no one has complained before. Because we’re being very upfront about it, someone will come along and be okay with that in order to be featured in a calendar and a magazine.’

NAUI also asked Pelnar who it was that sent Livingston’s comments to Heller’s letter around the Web, because they want to send that person a letter from their attorney. “The guy told me, ‘We want to know who is spreading the rumors because we don’t want anyone to interfere with our business with our clients.’”

While this contest seems geared for amateur divers who may make their annual dive trip to the Caribbean and take a few underwater photos but never expect to sell them, Heller says it was amateur photographers who thought the guidelines too strict that alerted him to NAUI’s contest. “I’ve never once seen a contest that demanded ownership of all images. Sure, thousands of divers would love to see their photos used by a professional organization, but your ownership of them should not be handed over to a company for a free liveaboard trip that has a value much less than the value of the ownership of the photo. If the goal of NAUI’s contest is to engage the diving community, to take more photos, get in the water and enjoy this sport, that’s fine, but I think these are still really abusive guidelines. If the goal of the contest is strictly to obtain free images -- which NAUI has confirmed -- that’s a situation that crosses moral and ethical boundaries in a substantial way.”

“For the average photographer, the NAUI photo contest does sound like a good idea,” says Boom. “But even an average Joe photographer might get a big sinking feeling in the pit of his stomach if he sees his losing photo used over and over in NAUI promotional materials without a thing in return. It doesn’t take being a professional photographer to know when you’re being used.”

Better Contests to Try

Check out underwater photo clubs and societies, which are typically nonprofit organizations and have more photographer- friendly rules. For instance, the Northern California Underwater Photographic Society states in the rules for its 2010 photo-video competition this month, “All persons selecting a prize agree that their image(s) or video may be used by NCUPS for promotion of the club and its competitions in future years.” That’s it. No all-rights grab for the end of time. Or consider the Cozumel Photo Shootout (www.cozumelphotoshootout.com) on September 15-19 and sponsored by the Presidente InterContinental Cozumel & Resort and dive shop Scuba Du. They’re offering $11,000 in cash prizes, and, as per the website, “The rights of the images belong to the photographer, [who] will share the rights at no cost with Telefónica Movistar (main sponsor), the organizing committee and the Cozumel Promotion Board.”

Boom also recommends contests from the Los Angeles Underwater Photography Society, Beneath the Sea in New York and Our World Underwater in Chicago. “They’ve got prizes every bit as good as the big NAUI prize, and in some cases have more and better prizes and better odds. And if you enter and lose one of these contests and you think your photo’s deserving, you are free to enter it in all the other contests. NAUI’s self-serving competition robs competitors of that chance.”

“Hang onto your rights because they’re all you’ve got,” says Pelnar. “You may have put blood, sweat and tears into getting that photo. Is winning a dive trip or a piece of gear really worth giving all of your rights to that away?”

Apparently, to those who enter the NAUI photo contest, giving away their rights for a chance to spend a week on a Blackbeard’s Cruise, five nights in Kosrae, Micronesia, or get three two-tank dives from Stuart Cove in the Bahamas is no big deal, even if they have to pay their own airfare to get there.

- - Vanessa Richardson