TELL YOUR PUP YOU LOVE HIM

(UPDATED 2013.07.26) The Design Exchange, the useless “design museum” that has done nothing but disappoint for 20 sorry years, has “partnered” with the RBC Foundation to launch the so-called Emerging Designer Competition.

If a winner is selected, they’ll be awarded $10,000. An unspecified number of runners-up may or may not win $1,000 each (the designation and the award are separate). But the true claimed value of this competition is in “recognition and exposure,” which as I understand it you can also get from a free Tumblr.

Now, if you are foolish enough to enter, what do you stand to lose? Everything. The rules (PDF) clearly state (emphasis added):

Intellectual Property/Priority Rights/Rights of Publication

By entering the competition, the entrant:

  1. agrees that RBC and the Design Exchange will have the right to use and/or publish in any medium and for any purpose, without compensation, the submitted design,

  2. certifies and warrants that the submitted work is the entrant’s own original work and that the work, including its eventual publication by RBC and/or Design Exchange, does not and will not infringe any right of any third party, including intellectual property rights and rights of privacy[,] and

  3. agrees that RBC and the Design Exchange may use either during or at any time following the competition, but in relation to the competition, the name and photograph of the entrant without restriction or compensation.

You’re allowing a half-assed and perpetually mismanaged design museum and a multi-billion-dollar bank that lays off Canadian workers in favour of imported Indians to do literally anything they want with your design, including:

  • claim somebody else designed it

  • change it in any and all ways

  • put it into production and keep all the money, or publish it and keep all the money, or both

Note well that although the so-called RBC Foundation is the ostensible sponsor of the contest, you are authorizing the entire corporate entity that is RBC to do whatever it wants.

Oh, and if they choose to identify you as the designer, they can use that name and your photograph (which in all likelihood you did not take, hence have no actual rights to sublicense in this way) however they wish.

Of course there will be kids who are ignorant or stupid enough to enter.

Judges – or at least one judge – did not know their own rules

I decided to fact-check people’s asses. I wrote to some of the judges in the contest. Bizarrely, judges are allocated into two tiers, with superstars like Douggie Coupland (q.v.) and foreigners grouped in a higher tier. (These judges are described as “[a] jury comprised of design heavyweights, including Heather Reisman, Marcel Wanders, and Douglas Coupland.”) Locals – commoners – huddle in the steerage-like Tier 1. I mailed all the judges in that lower tier and Marcel Wanders.

Only Omer Arbel got back to me, claiming the rules “refer… only to the photography or image of the piece, so they can use it in their marketing, not the [intellectual property] itself.” I told him he was wrong and gave him another excerpt of the actual rules. “Let me clarify with DX and get back to you,” he wrote, then didn’t.

Sponsors refused to comment

Two sponsors of this “competition” did not bother answering my questions, either: The Association of Chartered Industrial Designers of Ontario and Interior Designers of Canada. As those sponsors are the actual governing bodies of various design professions, their refusal to address the outright confiscation of design students’ rights shows these bodies occupy a moral vacuum.

True to form, RGD had the worst response

The Registry of Graphic Designers of Ontario, a widely-despised organization that thinks it’s the popular kid in school, unleashed its publicist Michelle Pereira to malaprop thus:

We, at RGD, do appreciate your efforts to be vigilant against cases of speculative work and exploitation of designers, but there is no indication that this is one of those situations. The terms are entirely appropriate and respectful of professional best practices.

Yes, she really said that.

The emerging designers who will be recognized are submitting work that they have already created. RBC and the Design Exchange indicate that they would like the rights to promote and publish the work of the award-winners.

False, as I told her. The rules give a helpful question and answer: “Why participate? The winner will receive a cash prize of $10,000.”

A fundamental motivation for entering competitions is to gain recognition. Having one’s work promoted and exposed to others is the very reason for entering. That an emerging designer will also receive a $10,000 cash prize in recognition of their existing work is an additional benefit.

Actually, no, the rules state that the cash prize may be withheld.

Pereira didn’t bother following up on my corrections.

Note well that not only RBC but also the Design Exchange may confiscate rights to entries, so it’s not as though DX has fewer rights than the rapacious multinational bank does.

What about the Design Exchange?

The Design Exchange’s president, Shauna Levy, eventually wrote back. At this point you should easily guess what she said.

I understand your concern regarding the terms and conditions of our Emerging Designer Competition. Please note that entry in the competition is entirely voluntary. The purpose of the competition is to provide an opportunity for emerging Canadian designers to gain recognition and exposure, while celebrating the immense and diverse design talent in Canada.

As you may know, the Design Exchange is a registered nonprofit charity. Neither the Design Exchange nor its partners have any intention of reselling an entrant’s work for profit without notice or compensation – and in our case it would be contrary to the Design Exchange’s charitable mandate to do so. However, we do require the ability to promote the Design Exchange in order to raise awareness of our activities and also to solicit donations so that we may continue to pursue our organization’s charitable purposes.

Nevertheless, I certainly appreciate your concerns, and we will look at revising the terms and conditions, particularly with respect to intellectual property, in the next iteration of our competition.

Levy really said that if you agree to these terms it’s your own damned fault (“entry… is entirely voluntary”), this is really about “recognition” (it isn’t – it’s a contest with a prize), and we’re a nonprofit so we would never stoop so low (legally moot, and anyway, RBC isn’t and would).

Levy did not bother replying to my corrections. But somebody else did.

Not quite a threat from the DX’s lawyer

The Design Exchange’s lawyer, Paul Banwatt of Gilbert’s LLP (“Avant Garde Lawyers™”), wrote in to ask that he and I meet.

This was unexpected, to say the least. I also saw it as enabling Banwatt to make all sorts of statements without a written record and, more importantly, to simply hand me a letter demanding I retract and apologize for whatever remarks in this posting were deemed defamatory. (I don’t engage in defamation. I know the law well enough to write tutorials for other journalists.)

Banwatt told me he had no instructions to threaten me, which is a rather thinly sliced assurance at best. We did not meet and aren’t going to.

What about RBC?

RBC spokesperson André Roberts wouldn’t give me his phone number and ignored a request for an explanation, as follows:

I’d like a statement from you about how you feel about this unfair and uncompensated transfer of rights. The terms clearly and unambiguously state that RBC and DX may “use” the work “for any purpose, without compensation,” which means RBC can, for example, sell the work, reuse it, or claim RBC invented it. Why exactly does a multi-billion-dollar employer of offshore contractors need to seize the rights to use “emerging” designers’ work “for any purpose”?

What should have happened?

What should the Design Exchange have done instead?

  • First, it should have shown basic competence. This is too much to ask, of course, but any blithering idiot can read these rules and understand what they mean. As a corollary to this point, the president of the DX should not have attempted to blow smoke up my ass.

  • Next, DX should not have teamed up with amoral sharks from the banking industry. There are cleaner sources of money, up to and including legitimate businessmen whose family fortunes once derived from organized crime.

  • If you want an example of terms and conditions that call for only what a competition actually needs, look in an unlikely place – the TTC’s now-expired contest for photographs featured on the cover of the Ride Guide. Its terms are as easy to understand as the DX’s, but do not attempt to deprive designers of their rights. (I’ve cleaned up many copy errors in the erratically-produced rules document, no longer online.)

    Entrants grant an irrevocable, perpetual, worldwide, nonexclusive licence to TTC to reproduce, distribute, display, and create derivative works of the entries (along with a name credit)…. Entrants consent to TTC doing or [failing] to do any act that would otherwise infringe the entrant’s moral rights…. Any winning photograph reproduced, distributed, and/or displayed will include credit to the photographer.

    You may wonder why I hold up the foregoing as a model when it explicitly allows TTC to abrogate photographers’ moral right. The reason is that the clause is essentially moot because TTC promises to credit the photographer. There is another way in which TTC might violate the moral right – by doing such a lousy job cropping or printing the photo that the photographer might find their reputation sullied. Both could actually happen, but I think the whole matter would be so trifling and unlikely that complaints need to be precluded. Michael Snow this ain’t.

    So: If you enter the contest and win, TTC gets to do what you want it to do in the first place – reproduce your photo on the Ride Guide and elsewhere with your name attached. (There are a few small prizes, too.)

What could the DX have learned from the TTC example? It’s so simple even a child could have put the rules together. Having a child do it would have had the side benefit of not involving liars and managers and judges who don’t even read what they sign up for.

Here is all the RBC/DX rules had to say. And I mean all.

  • We can reproduce photographs and illustrations of the winning work and runner-up works. We can also reproduce a photo of you.

    You have to be the copyright holder of the photographs and illustrations we reproduce; pay special attention in the context of the photo of you, because the person who takes the photo, even using someone else’s camera, has the rights to it. By entering, you promise that you are the copyright holder of the photographs and illustrations you submit.

  • We will always credit your name as the designer of the work.

  • All other rights to your work remain unchanged.

There. You’re done.

Too fucking simple? Apparently.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2013.04.08 13:46. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:
https://blog.fawny.org/2013/04/08/rbcthieves/

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