By Sally McCausland
First published in ART+Law, December 1999
Artists and community organisations should be wary of using words or images associated with the Olympics in the lead up to the Sydney 2000 Games. There is a series of legislative measures allowing the Sydney Organising Committee for the Olympic Games (SOCOG) to control such uses. The main target is the unauthorised use of words or images which falsely imply an official connection or sponsorship with the Games. However, other uses may sometimes be caught as well. These could include protest art, parody and the activities of local groups celebrating the Olympics. Arts Law recently advised a caller who had designed an Olympics poster for his community, only to have SOCOG deny permission because the poster featured the Olympic rings. Below are some further examples of traps for the unwary...
The Olympic rings: a no go zone for protest art
The Olympic Insignia Protection Act (1987) protects the Olympic torch design, the Olympic rings, the Olympic motto ‘citius, altius, fortius’ (or faster, higher, stronger) and various associated images by providing for them to be registered as designs owned by the Australian Olympic Committee (AOC). Under a joint marketing agreement, SOCOG has the right to use certain of these designs and may, along with the AOC, prosecute unauthorised uses. These designs, or any ‘fraudulent or obvious imitation’ of them, cannot be ‘applied’ to any ‘article’ to be used or sold in Australia, without a licence.
This legislation potentially gives the AOC (and SOCOG) the power to prohibit protest art incorporating Olympic insignia on a range of ‘articles’ including t-shirts and perhaps even billboard posters. A theoretical example is an artist opposed to the contentious Bondi Olympic beach volleyball stadium who sells a t-shirt showing the Olympic torch stubbed out in the sand. In this instance AOC or SOCOG may take the view that the artist, and those involved in selling and distributing the t-shirts, have applied a ‘fraudulent or obvious imitation’ of a registered Olympic design to an ‘article’ and should therefore have sought permission.
There is no requirement that the public be misled into thinking that the t-shirt is an official Olympic product in order for AOC or SOCOG to commence legal action. If either body sues, they could potentially obtain an injunction against further sales of the t-shirts, as well as damages or an order to pay over any profits made. The only possible defence, it seems, would be to argue that the Act goes beyond Parliament’s legitimate goals in protecting the integrity of the Olympics, and is therefore invalid. However, challenges to the validity of legislation are very expensive and risky. For a rare example of a successful challenge, see the following piece ‘Protest art and the Bicentenary’.
The Sydney 2000 Games legislation: protecting the sponsorship dollar
The Sydney 2000 Games (Indicia and Images) Protection Act (1996) provides comprehensive protection against the use of words and images associated with the Sydney 2000 Games from what is called ‘ambush marketing’. Ambush marketing is where a supplier associates goods or services with a sponsored event without paying official sponsorship rights. The Act covers words such as:
- ‘Games City’
- ‘Millennium Games’ and
- ‘Share the Spirit’
or combinations of words such as ‘Olympian’ with certain colours such as gold and silver. Similar Sydney 2000 Paralympic Games words are listed. The Act also refers to ‘Sydney 2000 Games images’ and ‘Sydney 2000 Paralympic Games images’. ‘Images’ in this context covers ‘any visual or aural representations’. Accordingly, images would include Olympic or Paralympic themed music, photographs of athletes, greeting cards using the ‘rainbow banner’ or other images that allude to a connection with the Games.
The Act prohibits these protected words and images from being used for ‘commercial purposes’ which suggest to a ‘reasonable person’ that the supplier is an official sponsor or Games supporter, if that person does not have a licence from SOCOG. The Sydney 2000 Games legislation therefore does not prevent protest art or community activities using Sydney 2000 Games words or images so long as such uses do not imply an official connection with the Games. In addition, the Act expressly states that anyone may use protected words and images for the purposes of disseminating information about the Games or for the purposes of criticism or review (for example, a newspaper report on an event). This legislation is therefore less restrictive than the Olympic Insignia Protection Act.
Olympics trade marks
Artists and community groups should be careful not to infringe various Olympic or Sydney 2000 Games related trade marks by using them to imply a connection in trade with SOCOG or another Olympic trade mark holder. For further information on trade marks see IP Australia’s website at www.ipaustralia.gov.au, and Arts Law’s free information sheet available from our website at www.artslaw.com.au or by contacting Arts Law.
But there’s more: copyright
Copyright may provide an additional weapon to SOCOG against reproductions of official Games images. SOCOG may sue for copyright infringement if someone wholly or substantially reproduces an artistic image in which it holds copyright. There is generally no exception to copyright infringement for protest art, non-profit community art or parodic or satirical uses of a copyright image.
In the Federal Court case of Sydney Organising Committee for the Olympic Games v Pam Clarke last year, the defendant had produced and distributed free t-shirts on behalf of Animal Liberation Tasmania. The t-shirts carried a design ‘depicting a hen in a cage with five eggs’, which, SOCOG alleged, infringed copyright in their Sydney 2000 logo. SOCOG does not always prosecute parodies of their logos: for example the Mambo t-shirt design, ‘It Looks Like a Chook to Me’. However, in Pam Clarke’s case, SOCOG sought and obtained an injunction restraining any further reproduction or sale of the design, and delivery up of all the remaining t-shirts. The fact that the t-shirts were distributed free for ‘donations’ was not a defence.
Note that copyright also applies to the Olympic designs registered under the Olympic Insignia Protection Act.
Finally, for those wishing to use the Aboriginal flag...
On a related matter, those wishing to print t-shirts for reconciliation or other purposes during the Sydney 2000 Games festivities should be aware that permission to use the Aboriginal flag must be sought from the copyright owner, Harold Thomas. Art+Law readers will recall our report of the case of Harold Thomas v Brown (1997) in Art+Law issue 2 of 1997. In that case, Harold Thomas successfully argued that he was the original owner of copyright in the Aboriginal flag and succeeded in preventing the Commonwealth from registering the design as an official flag without his permission. Mr Thomas has indicated that he objects to commercial exploitation of the flag without his consent.
Protest art and the Bicentenary
In Davis v Commonwealth (1988) Indigenous protestors sued the Australian Bicentenary Authority over its refusal to permit the sale of t-shirts bearing slogans such as ‘200 years of suppression and depression’ during the 1988 Bicentenary celebrations. The Australian Bicentenary Authority Act (1980) prohibited the use of words such as ‘200 years’ or combinations of words such as ‘88’ and ‘Australia’ on any items for sale without permission.
The High Court held that the legislation went beyond what was reasonably necessary to protect the integrity of the Bicentenary celebrations, and unnecessarily curtailed free speech offering a different perspective on the impact of the events of 1788. It held that the Authority therefore did not have power to prohibit the selling of the t-shirts.
Davis v Commonwealth may provide some limited guidance for a similar attack on the Olympic Insignia Protection Act’s requirement that permission be obtained to apply Olympic insignia to any article to be used or sold in Australia. However, the result of such an action would be extremely difficult to predict. Australia does not have a guaranteed right of free speech unlike, for example, the First Amendment to the United States Constitution.
The US Supreme Court has ruled that the United States’ Amateur Sports Act (1978) (similar to our Olympic Insignia Protection Act)) cannot prevent ‘legitimate uses’ of Olympic insignia for constitutionally protected political expression. There is no express constitutional safeguard of free speech in Australia.
