Oct. 6 2009, Duncan Riley
The International Olympic Committee (IOC) has sent a cease and desist notice to a committee member of the Australian Web Industry Association (AWIA) over his publication of photos he took at the Beijing Olympics on Flickr.
The IOC is demanding that Richard Giles, who as well as being in charge of communications for AWIA is also the founder of Australian web startup Scouta, remove the images because under the terms of entry into the Olympics, photos taken “may not be used for any purpose other than private.”
The C&D (pictured below) even goes as far as suggesting that Richard’s use of the word “Olympic” is also illegal because it cannot be used without “prior written consent.”
The pictures on Richard’s Flickr account (at the time of writing still available online here) include a mix of photographs taken in public places and of Olympic events Richard saw while he was in Beijing at the time.
The legal issues raised by the C&D are mixed on a couple of fronts. The IOC has zero standing in demanding that Richard remove photographs outside of Olympic venues. It would also have a very slim to zero claim over the use of the term Olympic in Richard describing pictures he has taken, for example a description on this shot stating “Beijing Olympics Water Cube” is a factual description of the shot, as opposed to any effort to hijack the Olympic trade mark.
The publication of the pictures on Flickr could be argued to constitute private use, but although the IOC does not specify the issue in their letter, their problem may lie with the fact that Richard has a creative commons license attached to the images.
It should be noted that the IOC makes no copyright claim over the images because it can’t: the copyright of the images belongs to Richard under US and Australian law (Techdirt has an interesting article on the topic here.)
What it comes down to is an argument about the enforceability of the terms and conditions of the tickets Richard purchased to attend Olympic events, specifically relating to the pictures he took at those events (as opposed to pictures taken outside venues.) Solution Journalism explains the US situation:
“…once you take the pictures of a public sporting event, you (or your employer) own the copyright of the picture, even if the pictures were taken in violation of a contractual agreement (such as the terms on your ticket stub). It is not possible to own “the event.” This was legally decided in the 1997 case of NBA v. Motorola Inc.”
There’s also the question as to whether the photographs were taken on private property, a consideration in the enforcement of the terms and conditions in this case. The law in the United States and Australia is clear on this point: people are usually free (with some exceptions) to take photographs on public property. The Olympic infrastructure was publicly owned in China, so the ability to enforce T&C on non-privately held grounds becomes thin.
But all of this may be moot, because we have to consider where the pictures were taken, and in this case they were taken in China. Would the terms and conditions of a ticket sold for an event in China be enforceable in Australia? Although the photos are hosted in the United States, the issue isn’t one of copyright, so there is no grounds for a takedown notice, instead it is a dispute between Richard personally in Australia and the IOC.
My bet is that it would be difficult for the IOC to get an Australian court to enforce the terms and conditions imposed on an event in a stadium in China, let alone events held in stadiums that were publicly owned.
If it was me, I’d drop the CC licensing because that’s a front that would be more difficult to fight on. The rest comes down to do you want to go to court to battle it out; it would certainly make for some interesting case law and might finally put the wind up the likes of the IOC when it comes to muscling the little guy when it comes to fair use photography. If Richard does want to take it to court, let me be the first to contribute to his legal fund with a donation.
The IOC C&D as follows, a bigger version on Flickr here.