An Update on the International Olympic Committee’s Threatening Letter to Flickr User Richard Giles

Beijing Olympics: Usain Bolt Breaks The World Record (Men's 100 Meters)<br />
Usain Bolt Image by Richard Giles, used under a Creative Commons license.

Earlier this week I blogged about a threatening cease and desist letter that Australian photographer Richard Giles received from the International Olympic Committee (IOC). The letter had objected to Giles’ “distribution and licensing” of Olympic photos in his Flickrstream.

Among other things, the IOC noted that “any reproduction and distribution of images of the Olympic Games and IOC identifications by any means, including over the World Wide Web, without the consent of the IOC is unauthorized.” They further claimed ownership over the Olympic rings and actually over the word “Olympics,” itself. Perhaps most offensive to me personally, the IOC had written in their heavy handed letter to Giles that any images of the Olympic Games actually “belonged” to the IOC.

The letter was signed by Howard M. Strupp, the IOC’s Director of Legal Affairs and suggested that Giles needed to conform with their requests (which were a bit vague) by October 8th. Rather than remove or relicense his images on Flickr, Giles instead posted his letter to his Flickrstream. It was first picked up by Duncan Riley over at the Inquisitr. I blogged about it. Boing Boing picked it up. TechDirt blogged about it. It started going viral. Giles also got in contact with both Electronic Frontiers Australia and Creative Commons Australia to try and figure out what his best course of action might be.

From the tone of the original heavy handed letter, it initially sounded like the IOC was actually objecting to Olympic imagery appearing on Flickr at all, having cited the images as unauthorized and saying that the images belonged to them (contrary to U.S. copyright law at least).

The IOC after receiving a bit of heat from the web though quickly back pedaled and clarified that their position was not that they wanted Giles to remove his photos from Flickr, but rather they wanted him to relicense his image from Creative Commons to all rights reserved.

After writing in to the IOC I was contacted myself by Mark Adams at the IOC who clarified that position and Giles was also contacted by the IOC with this information as well. To their credit, I found Adams very professional in his email correspondence with me. Adams told me that the the main objection that they had was that Giles’ image had been used for a major commercial book promotion in London. On his blog Giles confirmed that his image had been used (without any compensation to him) as an advertisement at a book store in London in conjunction with the launch of the 2010 Guiness Book of World Records.

Giles has a much more detailed post describing most of the above and much more information about his case here.

As of tonight, the issue is still not entirely resolved. Although the IOC seems much more diplomatic at this point than they did in the harsh C&D letter that they originally sent Giles, they still seem to be insisting that he change the license on his photos to all rights reserved.

Giles, on the other hand, would like to retain a Creative Commons non-commercial license on his photos. All of his Olympic photos are licensed CC non-commercial as it stands now, with the exception of the Usain Bolt photo (the same photo used by the bookstore in London) that is licensed just regular CC. Giles had removed the non-commercial restriction on this license originally at the bequest of wikipedia so that they could include the image on their site.

To me Giles’ position to retain his CC non-commercial license on his images makes perfect sense. I think he should not cave in to the IOC and change his Olympic photos to “all rights reserved.” The Creative Commons non-commercial license is perfectly suitable to protect the IOC against unauthorized commercial use as the non-commercial portion of CC would prohibit this. If the IOC is going to insist on Giles making this change, this move would worry me for a number of reasons.

First, the CC license (despite the fact that Flickr allows you to change back to all rights reserved) technically cannot be revoked. it is an irrevocable license. From Creative Commons:

“Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.”

Further, it seems like an uphill battle to me for the IOC to go after this popular license. At present there are almost 140,000 images licensed as CC images on Flickr for the search term “Olympics.” While admittedly, many of these images are not of the Olympic games, when you restrict a CC search to “Olympics” and “China” you still get almost 20,000 CC images. Many of them of very high caliber, professional type images of the games.

Even if the IOC gets Giles to relicense his photos, this does nothing to stop other people from using these other images. Unless the IOC is prepared to play a lengthy game of whack-a-mole, this problem is only going to reappear again and again.

Especially in light of the fact that social media is more popular than ever, future Olympic Games will only mean a far greater number of CC Olympic Images make their way online. And we haven’t even gotten into all of the CC Olympic images available at other places like wikipedia — for example, this image of sprinter Michael Johnson from the 2000 games in Sydney.

Rather than try and fight the CC license, the IOC should take a deep breath, relax and learn to accept it. The liberal nature of the CC license means that images of the games receive even greater distribution. This is the best free PR that money can’t buy.

Trying to stomp out every single photographer with a CC license will only backfire against the IOC. Can they hunker down and take an RIAA approach to images of the games? Sure they can. But if they do, they ought to expect the same sort of hatred that is shelled out to the RIAA when they go about threatening photographers the way the RIAA threatens grandmothers.

Might the IOC miss out on a few dollars here and there because some publisher chooses to go with a free CC image rather than try and license one from them? Sure. But it’s a small price to pay to ensure the goodwill of photographers and fans all over the planet.

The Olympics belong to all of us — to the fans, to the athletes, to every person on the planet, and yes, this even includes photographers like Richard Giles. I think the IOC has taken a good first step to try and diffuse this messy PR case that they’ve made for themselves. They should take the next logical step and tell Richard Giles that they’ve rethought his situation and are willing to accept a CC non-commercial license.

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7 comments on “An Update on the International Olympic Committee’s Threatening Letter to Flickr User Richard Giles
  1. Eric says:

    Thomas,

    I think a couple of points about the CC license are important here.

    First, the CC only applies to Richard Giles rights in the images. As you know, model and property releases may be necessary for anyone wishing to use these images in a manner inconsistent with the privacy/publicity rights of the subject of the photos (i.e., Giles can’t license the use of the Olympic brand by making the photo available under CC). As a result, the IOC’s position that they want the license changed is nonsensical.

    The CC license or copyright license has nothing to do with rights to the IOC’s trademarks or publicity rights within those images.

    Second, the CC license is revocable from future uses of the image. While current users of the license are subject to continued use consistent with the CC license the image was obtained under, Giles can prevent future users from violating his rights therein. Granted, there is a practical matter of proof that becomes logistically challenging when revoking a CC license.

    Really, the IOC is trying to talk about publicity and trademark rights here, which, as noted above, has no legal bearing on a CC license. I think the IOC may just be grasping for damage control to try to re-phrase the issue and sound more friendly since they’re getting all the bad press now. A CC license is irrelevant to their rights in the images.

    I’ll finish up by touching on the original issue. I think this boils down to a contractual issue that was alluded to in the original demand letter from the IOC. That is, the images taken at the event may only be used for personal use. The question then becomes whether Giles’ use of those images on Flickr violate those terms on the ticket. I haven’t seen the restricting language from his Olympic ticket, so I can’t really comment on whether or not that is the case.

    What I do think is relevant is that the trademark and privacy issues raised by the IOC are likely bluffs. I mean, seriously, the IOC thinks we can’t use the word “Olympics” without violating their trademark rights. Trademark law also affords protections for the fair use of others’ marks (although the test is different than copyright law). Additionally, the privacy/publicity argument seems pretty weak, since he was there in a public forum and there’s no apparent economic gain for Giles by sharing his photos on Flickr.

    I think it boils down to whether the IOC can limit Giles’ sharing of the images via Flickr pursuant to the terms of the agreement. If the ticket agreement reads like the IOC says, then it’s probably a question of fact for a judge or jury to decide just how far “personal use” under the ticket agreement extends.

    However, it looks like the IOC is backing off and trying to save face by “clarifying” itself on the licensing issue, which, again, sounds like nonsense since the IOC’s rights are not diminished or increased from a CC license. (Just ask Virgin how that worked out for them.)

    I’d love to see that ticket agreement though.

    One last thing is the disclaimer: These comments are provided for informational and discussion purposes only, and are believed to be accurate, but are not intended to be and should not be considered or relied upon as legal advice regarding any specific topic or matter.

  2. Ryan says:

    “Trying to stomp out every single photographer with a CC license will only backfire against the IOC”

    True, but how about just going after the ones they notice in a big commercial setting?

  3. Thomas Hawk says:

    Eric, you are spot on regarding the issues of model and property releases. In part, it seems like the IOC is trying to say that they are the good guys out to protect the images of the athletes against unscrupulous commercial exploitation. But in actuality any commercial use of someone’s likeness requires these important releases giving each individual athlete an opportunity to negotiate directly with a commercial entity using their likeness with a CC image. Of course any such an arrangement between an athlete and a commercial entity bypasses any profit to the IOC so that is probably really the truer issue here. That’s an important point to be made.

    I’m not sure about the revocability of the CC license after the fact for use going forward. CC states that the license is in fact irrevocable. Are you aware of any case law where this has been tested?

    Thanks also for your clarification on the ticket license itself.

    “Trying to stomp out every single photographer with a CC license will only backfire against the IOC”

    True, but how about just going after the ones they notice in a big commercial setting?

    Ryan, this does nothing. In this case the use has already taken place. As the image was licensed under CC originally, the damage has already been done. Killing the license after the fact accomplishes nothing. You might make that image less discoverable in the future, but a thousand images will replace it going forward of similarly high quality Olympic imagery. Unless the IOC wants to be *proactive* and try and go after this imagery *before* it is used, they accomplish very little.

    Even those who want to subsequently use the image after the fact (assuming they do get a photographer to change his license) can always claim the original irrevocable CC license on the image (I believe, but am not aware that this has been legally tested yet), that could be a good question for CC attorneys actually.