On Jul 26, 2012, at 4:23 AM, wiki-list(a)phizz.demon.co.uk wrote:
kikkocristian(a)gmail.com wrote:
I really can't figure out the
difference between your example about
personality rights and my previous, so I don't see why you're saying
that the above approch could not work, but IANAL.
As I said above I think this restrinction on commercial use of the
images imposed by IOC is not about copyright but is on a different
level and AFAICT is very similar to the case of personality rights to
some extent. So may you clarify?
There is a contractual arrangement between the IOC and the photographer as
specified in terms and conditions on the ticket. If some one makes photos available
commercially then they may be sued by the IOC under the terms of that contract. The issue
isn't about copyright but about the contractual agreement and personal liability
between the photographer and the IOC.
This is a contract with the ticket fine print. But I don't see how that
contract could actually bind the photographs. Certainly it prevents you, the contractually
bound ticket holder, from using media you produced under this contract in a commercial
manner. However the IOC cannot possibly extend the contract beyond the ticket-holder. Nor
force the ticket holder to police third-parties. Let's run a few possibilities:
Ticket-holder (TH) places own-work photo on FaceBook. It goes viral across the Internet
and is eventually posters of the photo are found in the marketplace. IOC wishes to end
poster sales. Your position that this the contract must be effective against third
parties would mean that if TH fails to hire a lawyer and vigorously enforce their
copyrights; then they have broken the terms of the contract with IOC and are liable for
damages. This is not how contracts work. If TH does not choose to enforce their
copyrights then IOC can do nothing.
TH has a great photo, their sister owns a bookstore. TH informally licenses the photo to
Sis to use in advertising. The IOC does not even have the standing to discover if Sis has
a license to use the photo or is instead infringing on the creator's copyright. Only
the copyright holder has standing contest the use of their work. IOC can do nothing.
TH dies. Daughter inherits copyrights and sells photos taken at last month's
Olympics. IOC can do nothing.
TH donates the full copyrights on all photos they created at the Games to a non-profit
organization on the condition that their identity is not revealed. The non-profit, now
copyright holder, licenses the entire collection CC-SA. IOC can do nothing.
The only reason the IOC was even able to make the empty threats it did about the Usain
Bolt photo is that the photographer and licensing were all easily tracked down on Commons.
This issue (limits of contract law vs. copyright law) has been well hashed over in the
past. The IOC cannot do what it seems to claim on this issue. I have actually dug around
for the links to past discussions of "contracts for access used in attempt to
control copyright", but sadly no luck. (I did however find useful links on three
other issues sitting at the back of my mind!)
Really the IOC, whatever it wishes, cannot control the licensing, much less the actual
usage, of photo taken at the Olympics. It has no right to do so, not under copyright, not
under contract law. It can in a very limited way exert control over individuals who
voluntarily entered into binding contracts *with the IOC*. It cannot exert control over
the photographs themselves nor any other individuals. The IOC has shown a willingness to
harass and threaten people into a level of compliance that it has no right to demand. We
can offer a shield from harassment to photographers, if any exist, who would like to offer
their work to the common cultural landscape without being credited. Through
pseudo-anonymity we can offer photographers a way to attribute their works to an account
that cannot be identified today but can be repatriated tomorrow when the heat has cooled
off. However, we probably should refrain from encouraging easily identified Flickr users
to relicense their work in a way we now know will likely bring the IOC to their doorstep.
Birgitte SB
In general terms I think that a lot of these "contracts" on the back of
a ticket, Terms of Use, and End User License Agreements may have a very
limited enforceability. How many people really "read, understand and
agree to" what they say? How do they know if the often lengthy legalese
violates rights that they have under the law? In the case of software
updates where the terms must be agreed to again there is great
opportunity to quietly and subtly introduce new terms that won't be
noticed except by careful comparison of the old and new versions.
Ray