For the Olympics, protecting its brand is paramount. The Olympics protects its brand through trade mark protection, copyright protection, design protection, Australian Consumer Law (ACL) protection, and its very own Olympic Insignia Protection Act 1987 (Cth) (OIPA). The Olympic hype is contagious, as millions of people around the world are watching and following the Games. Therefore, not surprisingly, companies, advertisers and agencies push the boundaries of these laws to jump on the Olympic bandwagon to promote themselves or their products. The question is; how far can you jump?

Telstra is a prime example of how companies will try to capitalise on the exciting global event. Just last month, the Australian Olympic Committee (AOC) took Telstra to court for broadcasting advertisements, which incorrectly suggested that Telstra is a sponsor of the Olympics. However, the Federal Court ruled in favour of Telstra, highlighting the blurred lines of what constitutes a breach of the ACL.

Protecting a Brand

The Olympic brand, the famous rings logo, any other Olympic designs, and certain Olympic expressions are protected by law and can only be used with express permission from the International Olympic Committee (IOC).

The IOC has exclusive ownership of Olympic-related trademarks, including the ring logo, flag, motto, anthem, mascots, the word “Olympic” and other related terminology (collectively referred to as the “Olympic properties”).

On top of that, each country is also required to have its own legislation and body to enforce the IOC’s exclusive rights.

The IOC imposes strict rules surrounding the advertisement of the Olympics. Any significant references to the Olympic properties can attract the need for express permission from the country’s governing body. Even giving away tickets as freebies or prizes requires official authorisation.

The Olympic Insignia Protection Act

In Australia, the relevant legislation protecting the Olympic properties is the Olympic Insignia Protection Act 1987 (Cth) (OIPA). The IOC assigned the Australian Olympic Committee (AOC) with the rights to enforce this Act and grant permission to those who wish to sponsor or otherwise affiliate themselves with the Olympics for commercial purposes.

Similarly, the Major Sporting Events (Indicia and Images) Protection Act 2015 (Cth) offers protection to Australian organisers and sponsors for other major sporting events, such as the Asian Football Confederation, the Cricket World Cup 2015, and the Gold Coast 2018 Commonwealth Games.

Unauthorised Commercial Use

Certain non-commercial uses are permitted when it comes to referencing the Olympics, or any other protected brand for that matter. For example, your average citizen can post about the Olympics, or Instagram a photo of an Olympic participant without contravening the relevant laws. The problem arises where a commercial brand engages in such activities for self-promotion, which could suggest to the public that they are an official sponsor.
However, the advent of social media casts a blurry line over the difference between commercial and non-commercial uses. For example, if you have 10,000 followers, does this mean that your posts are used for commercial purposes?

The line becomes even hazier for those who are affiliated or partnered with an Olympic participant, or another company who is an official sponsor. This creates additional obstacles when promoting their association with an athlete or brand, without referring to the Olympics. This was the key issue with Telstra, who had a partnership agreement with Seven Network for the Seven’s Olympic Games Coverage.

Legality of Body Advertisements

Not only can you not advertise on TV, radio, or social media, without permission, but body advertisements can attract the same legal disputes.

In May, a British Paralympic champion, Josef Craig, was disqualified from a race at the International Paralympic (IPC) European Swimming Championships for breaching advertising regulations by displaying his tattoo of the Olympic rings.

The IOC took a different view and actually endorsed Olympic ring tattoos, encouraging athletes to display them with pride. The same approval does not apply to tattoos, which advertise another product or brand, which were required to be covered up during the games. Having tattoos which promote other brands is quite common for famous athletes even to the point where some athletes are selling body space for marketing purposes.

Nick Symmonds, a two-time Olympian, frequently bares his skin to the marketing world. Just this year, Symmonds auctioned off nine square inches on his right shoulder via eBay, with the winning bid of $21,800 by T-Mobile. Although he did not compete in the Rio Olympics, the IOC has required Symmonds in previous years to tape these tattoos during the Games.

The strict rules imposed by the IPC, and the IOC’s ruling against tattoos that advertise other brands, strikes an interesting question of who owns your tattoo?

Getting Under Your Skin

From a legal standpoint, an original work is protected by copyright, regardless of the canvas on which it appears. This means that the tattoo artist owns their designs, despite any consideration given, and has the exclusive rights to exploit their work.

Surprisingly, these legal disputes arise quite frequently:

  • Earlier this year, a group of tattoo artists, responsible for famous athletes’ tattoos, including Lebron James and Kobe Bryant, filed a copyright lawsuit against the creators of the NBA 2K video game, for displaying the tattoos in the game.
  • We all remember The Hangover Part II when Stu, played by Ed Helms, wakes up with a replica of Mike Tyson’s tattoo on his face. The tattoo artist, S. Victor Whitmill, who designed the original artwork for Mike Tyson, sued Warner Bros. for copyright of his design.

Just like the traditional advertising rules do not necessarily apply to your average citizen, the same goes for displaying your tattoo in your day-to-day life. Exploitation of an artist’s work may only infringe their rights if used for commercial purposes.

While there have been no legal disputes in Australia, the lesson to be learnt is clear; just because something is ink-deep on your skin, does not mean that you have the rights to do whatever you want with it.

Key Takeaways

  • Advertisement can come in all different forms. Most importantly, regardless of the canvas upon which the brand appears, it is still protected by copyright law.
  • Athletes and other public figures are most at risk for violating copyright law in this way. If this is you, make sure that you have permission to display your tattoos in commercial appearances.
  • Similarly, cashing in on the Olympics, or any other major event, without official sponsorship or affiliation, or permission, opens you up to a legal minefield.

Are you thinking of advertising a brand or promoting someone else’s work and you’re not sure whether you may be infringing their rights? Call LegalVision’s consumer lawyers on 1300 544 755 or fill the form on this page.

Alexandra Shaw

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