[Wikimedia-l] photography restrictions at the Olympics

[Birgitte_sb at yahoo.com]

On Jul 26, 2012, at 4:23 AM, wiki-list at phizz.demon.co.uk wrote:

> kikkocristian at gmail.com wrote:
>>>>> Sources for the restrictions:
>>>>> * http://www.tickets.london2012.com/purchaseterms.html
>>>>> * PDF: http://j.mp/london2012prohibited
>> 
>> 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