On 07/26/12 6:47 PM, birgitte...@yahoo.com wrote:
On Jul 26, 2012, at 4:23 AM, wiki-l...@phizz.demon.co.uk wrote:
kikkocrist...@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
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
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