National Geographic has become the first brand to top 100 million followers on Instagram. According to Adweek, the brand has reached celebrity status, breathing the “same air as soccer and pop music superstars, as well as The Rock and the occasional Kardashian or Jenner.”
The account is a mix of photographs made by the magazine’s 135 contributing photographers and content sponsored by advertisers. Adweek reports that National Geographic’s social ad revenue rose 80 percent in 2018, versus 2017. In a post celebrating this milestone, Sydney Combs, a National Geographic digital producer, reports that the “photographs on the account have received more than four billion likes and 20 million comments.”
In further celebration, the magazine unleashed its photographic influencers to promote a photo contest featuring a grand prize photo safari trip to Tanzania. “Every day our photographers show you their worlds,” reads the contest site. “For one day, we challenge you to show us yours.”
There’s just one thing, though: the fine print.
Entering the contest is simple, requiring just three simple steps:
- Post your “Nat Geo inspired” photograph to your Instagram feed.
- Include the #NatGeo100contest in your caption.
- Vote for your favorite photo on Instagram.
The original contest rules, however, totaling nearly 5,000 words, took a little longer to parse. After reading the terms of agreement, I was struck by the broad legal language used — essentially allowing National Geographic to use entrants’ photographs, likeness, and biographical information beyond the contest or promotion, with the simple use of a hashtag. It’s an agreement that, to my knowledge, no professional photographer would ever commit to.
By midnight, after running the contest for nearly a day, fielding online pressure and a formal request for comment over email by Vox on its contest rules, National Geographic quietly revised its terms and conditions, sending Vox a short comment:
For clarification, we have updated our contest rules to make clear that we are only obtaining a non-exclusive limited license to use the submitted photos in connection with our #NatGeo100 Instagram contest and do not hold the copyright to these photos.
It did not, however, comment on the original terms of the contest agreement.
It’s also not clear how the original terms and conditions will impact those who had already entered the contest, which, according to Josh Raab, National Geographic’s director of Instagram, within the first four hours had collected 25,000 photographs.
I reached out to Mickey Osterreicher, general counsel for the National Press Photographers Association (NPPA) and a longstanding advocate for professional photographers’ rights, to discuss just how far the National Geographic took their license, whether this is a common practice, and how organizations can create agreements that protect themselves but aren’t so broad.
Here’s our email exchange, lightly edited for clarity.
When you first read the terms for this contest, what were your initial thoughts?
My initial thoughts were ones of sadness and disappointment that another once-venerable institution known for honoring photography had succumbed to a very lopsided rights grab.
It is my understanding that in response to the growing comments on social media, some of the terms of the contest were revised last night, but I do not understand how this will work given that the submission period ran from noon on 2/14/19 and ended at noon on 2/15/19 (their wording since corrected).
In this age of instant gratification, it is unlikely that many entrants will actually read the terms they are agreeing to. But as we advise everyone, they should read the terms and conditions of any contest or website, just as they would before purchasing a house or buying a car.
One word that really struck me was the use of the word “universe” in their legal language, specifically in this section [emphasis added]:
a non-exclusive license (but not the obligation) to reproduce, publicly perform, stream, exploit and otherwise use the Submission throughout the universe, in perpetuity, for any reason whatsoever, in any and all media, throughout the universe in perpetuity, without further notice to, consent by, or payment to entrant.
Is this common legal language for a photo contest? What do you make of this?
While some of this language is standard in many photo contests, much of it appears to be exploitative and grants more rights to National Geographic Partners (NGP) than are really necessary to run and promote the contest. It also allows NGP to profit in any way from the submitted images, and when it mentions the ability to “freely assign its rights hereunder, in whole or in part, to any person or entity,” that gives them not just the right to use the images but to sublicense the images to others. That wording provides additional rights to NGP, to the detriment of the photographer.
It is unfortunately not uncommon for a photo contest to have this kind of overly broad grant of rights. But they don’t have to. For example, the NPPA runs the Best of Photojournalism competition “renowned as ‘the contest designed for photojournalists by photojournalists,’” and while we could have asked for rights similar to NGP’s, our board was very specific in limiting our terms to those rights needed to run and promote the contest and engage in related initiatives such as exhibits, awards ceremonies, and archiving. NPPA thought it was extremely important to practice what we preach.
We think rights grabs are wrong, plain and simple. Our rules are simple and clear in what we will and will not do so that entrants are comfortable when submitting their entries. Our board was also very specific that they didn’t want an endless document full of legalese that photographers can’t understand and would never have the ability or patience to read, which is why our terms are less than two pages long.
What other rights are they folding into this contract that seem egregious?
The publicity release where they state:
each entrant irrevocably grants the Promotion Entities and their respective successors, assigns and licensees, the right to use such entrant’s name, likeness, biographical information and Submission, and any individual(s) participating therein, in any and all media for any purpose, including without limitation, advertising and promotional purposes as well as in, on or in connection with the Website or the Contest or other promotions, and hereby release the Promotion Entities from any liability with respect thereto
This section pretty much allows them to do what they want with the submitted photographs as well as the photographer’s name, likeness, and biographical information.
Let’s say millions of people use the #NatGeo100Contest. In theory, the National Geographic has just been given access to images they can profit from without any payment to the photographers. Is that correct?
That is absolutely correct; not to mention all those pageviews, likes, and shares they will be getting during the voting period.
Does National Geographic have a history of exploiting amateur photographers? Is there anything in their history that would make this contract seem like common practice?
I cannot comment on National Geographic’s past history, but there have been critical stories about their practices.
It seems to me that they could have avoided all of this by adopting fairer and simpler contest rules that accomplish their goals without taking advantage of unsuspecting photographers who are looking for exposure or a chance to win the contest. I also think that these terms do not live up to the lofty goals that the National Geographic Society sets for itself:
The Society has a number of unique strengths when compared to similar organizations. First, we are a trusted institution with unparalleled brand recognition. Second, we have global credibility and a strong legacy in the areas of science, exploration, education and storytelling. Third, our joint venture with NGP provides us access to hundreds of millions of people around the world each month. Finally, we have a $1.2 billion endowment, with additional annual income from NGP and philanthropic partners, allowing us to truly focus on achieving impact in line with our institutional priorities.
Given that trust, recognition, credibility, and enormous endowment, I cannot understand why they would seemingly diminish their brand in this way.
You tweeted, “for an organization that has honored the photographic image this is a slap in the face to photographers.” Can you expand a little on this?
Because of the hundreds of millions of images being uploaded and shared daily, photography has been severely devalued. The terms of this photo contest appear to be nothing more than a thinly veiled attempt to acquire free images from those who may not know better or do not earn their livelihood from photography — thus helping to further undermine the value of photography.
Many organizations have callouts for what we call “user-generated content”; any advice on how organizations could make contracts that are fair for the participants?
They could start by properly licensing images and seeking permission while providing credit and compensation for the “content” they are acquiring, using, and monetizing.
I find it impossible to read and understand the fine print. Do you have a handbook for photo-related contests like these on what folks should look out for? Any specific language that should make folks think twice?
There is no magic decoder ring or handbook. People must read the terms and conditions before agreeing to them. If it sounds too good to be true, it probably is. If it sounds bad, or you don’t understand the rules, ask for help or don’t agree to them.
Just hours before we were going to hit publish, we got a comment from National Geographic stating:
National Geographic is excited to celebrate that we have surpassed 100 million followers on Instagram thanks to our passionate fans and tremendously talented photographers. For clarification, we have updated our contest rules to make clear that we are only obtaining a non-exclusive limited license to use the submitted photos in connection with our #NatGeo100 Instagram contest and do not hold the copyright to these photos.
What do you make of this?
While it is true that they have not sought the copyright to the submitted images, the very broad grant of rights on the contest rules allows them to use those images in almost any way at their discretion.
Just as with other problematic and detrimental contracts or contests, if folks do not like the terms and conditions, they should speak up, voice their concerns or objections, or refuse to enter into agreements or contests. As we just saw with Apple, a company may reconsider and revise its position if enough people object or they are subject to negative publicity.
Anything else you’d like to add?
It is gratifying to note that [National Geographic] revised their contest rules to limit the grant of rights, but the fact that they still maintain the ability in their “sole discretion, to edit, composite, morph, scan, duplicate, or alter the Submission in connection with Sponsor’s permitted uses hereunder” is still of concern, as is the now 51-page set of rules.
This episode serves as a cautionary tale regarding the importance of reading and understanding agreements (such as contest rules and photo contracts) as well as the power of social media and negative publicity to bring about changes that might otherwise not have been made. From an enforcement point of view, I wonder how the changes in the rules during the 24-hour submission period will impact those who entered the contest under the initial terms and conditions.
[Editor’s note: National Geographic continues to update its terms regarding this contest. Read the contest rules here.]