Exclusive rights - in public place events (cycling, running etc.) - limitations or restrictions

[essaytee]

I'd like to open up for discussion a scenario surrounding 'exclusive rights' and what that term actually means when related to or involved with events taking place within public places.

Okay, here we go. An event is organised, say a cycling or running event, which takes place predominately on the streets. On the day in question I assume the event organisers have gained all the necessary permits and have sections of the road cordoned off, not allowing access to the general public, only entrants and officials of the event. There are no admission fees to watch the event, that is, the general public can and do watch from any vantage point, usually on the other side of the cordon (a public foot path).

The event organisers contract a photography company and contracts are signed whereby the photography company has 'exclusive rights' to the event. I'm assuming the photography company pays a fee for these rights and subsequently will profit when selling photos. The event organisers promote the fact that the photography company are the official photographers and further I assume the event organisers provide all the registration details of the entrants to the 'official photographers' for obvious reasons.

I'm curious as to the validity of the term 'exclusive rights' and how it can actually be enforced or further how anyone can be in breach of that agreement if they were not a party to that agreement in the first place.

Does it mean that entrants are denied purchasing or obtaining photographs from some organisation other than the 'official photographers'? I assume the event organisers would be prevented from promoting another source of photographs. Does it prevent other organisations or individuals from taking photographs? Does it prevent another organisation or individual from somehow promoting the fact that photographs of the event are available whether for fee or free?

ps. Yes, it's a given, for proper advice seek out a lawyer, but it's still a good topic for discussion.

[kiwi]

I would say that if you are shooting from a public place then you can do what you want, including selling photos to the competitors.

Now, it may usuaally be apublic place, but if leased for an event and there are terms & conditions attached to entry then that's another matter - but that does not appear to be the sceanario of which you speak

[jbee]

I remember at the first Adelaide GP in 1995, it was announced that someone had Exclusive rights to all moving and still pictures of the event, and so cameras would not be allowed in. Everyone just ignored it and security could do stuff all with 10 of 1000's of ticket holders pouring in with their camera's. I'll bet a few of the shots taken were sold as not all the pro photographers could get accreditation for the event.
This kind of greedy sowing up of every last cent is symptomatic of sport these days, it's no longer about the sport or the athletes or the crowd having a good time and taking some shots to remember it by, it' s simply about the money.

[ricktas]

Take Cycling here. Some of the cyclists have high profiles, so I would be wary of selling photos without a model release, cause you could find they (the exclusive rights photographers, or the athletes themselves) come at you from a legal aspect using that as the main drive for the action they decide to persue. I agree that in public space they cannot stop you taking the photos, but i feel selling them might be a legal minefield if shots of sports 'stars' are involved. My thoughts only here.

Interesting discussion

[Kym]

If you did not buy a ticket (i.e. enter into a contracts and be subject to T&Cs) and you shot from a public place then you have the full ©. That is clear in the © act.

As for model release, as I understand the © act you only need a release for commercial use, which is well defined. I.e. using that image to infer (say) endorsement for a product.

If I were to include that image in a calendar for sale I don't see why a model release is needed.
But IANAL !

[wmphoto]

Take Cycling here. Some of the cyclists have high profiles, so I would be wary of selling photos without a model release, cause you could find they (the exclusive rights photographers, or the athletes themselves) come at you from a legal aspect using that as the main drive for the action they decide to persue. I agree that in public space they cannot stop you taking the photos, but i feel selling them might be a legal minefield if shots of sports 'stars' are involved. My thoughts only here.

Interesting discussion

I've tried looking for the case, but can't find it, but I seem to remember a case a couple of years ago where a photographer was sued by a high profile athlete for selling photos of them on the basis that their "image" was their "brand". I can't remember the outcome but will keep looking.

[kiwi]

As said it depends on what the image is used for....eg editorial is ok, selling a few prints from your website or in an art gallery is ok....selling 10000 calendars is probably going to be deemed commercial

I'd like to be a copyright lawyer (not)

[maccaroneski]

essaytee, one work: Ed Zackery!

It is a bit of a minefield though, and several different issues arise.

1. Everyone above has it spot on regarding the actual taking of the images: in the absence of buying a ticket to a cordoned off area, snap away without fear.

Everything else, though, becomes a little more complex, as the law in this area is constantly evolving, and there have been a couple of high-ish profile cases which never proceeded to trial, and there was speculation as to what might have happened if they did. Although editorial use, as pointed out above, generally flies free.

2. Take a photo of a stranger in the street who is not in any way famous and without a model release: stick it in a calendar, sell it on a postcard, and even (probably) stick it on a billboard endorsing a product. All currently OK in Australia. Only maybe a problem in the US where there is a reasonably wide definition of "commercial use" that causes a problem.

3. Take a shot of a famous person walking down the street in "plain" clothes (i.e. not in some sort of sporting uniform). Stick it in a calendar, sell it on a postcard, sell 1000 - still no problem (kiwi seems to be representing the US position as what constitutes commercial use). Stick it on a billboard endorsing a product - now that is where you have a problem. Kym has it pretty right but as the law currently stands in Australia only a well known endorser of products can complain if you use their image without authorisation. But as I have said before, I wouldn't want to be the test case, and a model release would be (more than) prudent in any case where you want to use an image for advertising/product endorsement purposes.

4. There is an unsettled issue as to what happens if there is a trademark in the shot. Some say that if it appears "incidentally", then it's OK, irrespective of what you do with the image. Again, here you would err on the side of caution. In the Ricky Ponting unauthorised biography article I linked to above, Cricket Australia also got involved on the basis that the shot in question featured Ricky Ponting in an Aussie uniform, trademarked by CA. This was however on of those cases which did not go to trial, so there were no real answers, only more questions.

Here is a really good article setting out some issues regarding sportspeople: http://www.abc.net.au/rn/sportsfacto...07/2011128.htm

Soooo perhaps the organisers are attempting to push poo uphill in enforcing this exclusivity. Perhaps they are simply getting in front of whatever law might be around the corner. Perhaps they might be talking about reproducing shots with the organiser's trademarks in them.

insert disclaimer here about this not being specific advice, blah, not to be relied on, blah...

[farmer_rob]

I remember the sportsfactor item - interesting area.

Sadly it seems to me that the people with the deep pockets (e.g. the promotors) are the ones who do not want the case law defined, and the people with the shallow pockets (e.g. the amateur photographers) are the ones who will fold at the hint of a letter on legal letterhead, well before there is a chance of case law clarifying the situation.

[kiwi]

Tony, no, my advice on that came from an Australian qc

[essaytee]

Thanks for the replies so far.

In relation to the Grand Prix example, I agree with the posters sentiment but that is really the same as entering a closed arena, where tickets are purchased which have terms and conditions attached. I was stopped at AAMI Park Stadium (soccer) upon a bag search, the security guard would not allow me entry with a 70-300mm zoom lens and quoted terms and conditions a number of times as I was trying to appeal to his reasonable side, "I'm not a professional". I had to leave my camera at an office. I was peeved though understood they were within their rights. As an aside, I was told that they will allow zooms up to 200mm.

When initially posting the question I was not thinking along the lines of elite athletes in the photos but is clearly a factor and could arise either incidentally or by design. The types of events I was referring to are of the local type, not likely to attract the elites.

[kiwi]

Problem #1, AAMI Park Stasium is not a public place, problem #2, T&C's for the soccer (taht you agree to by purchasing tickets) probably state a couple of things,no professional ewquiipment, no lenses over 200mm and furthermore probably that any photo you take even with your mobile phone cant be published or used commercially.

So really, you dont have a leg to stand on in this scenario

[maccaroneski]

Tony, no, my advice on that came from an Australian qc

He was probably giving an opinion as to what might happen now if a case went to trial as opposed to what has actually happened to date - that's what you pay them the big bucks for, I guess. Where there is a "new" area the courts will look to the reasonings from US/UK/Canada to help them along in making a decision, and I suspect that being in his position he would be keeping up with that stuff too.

Hence my talking about "you wouldn't want to be the test case" etc.

[essaytee]

Problem #1, AAMI Park Stasium is not a public place, problem #2, T&C's for the soccer (taht you agree to by purchasing tickets) probably state a couple of things,no professional ewquiipment, no lenses over 200mm and furthermore probably that any photo you take even with your mobile phone cant be published or used commercially.

So really, you dont have a leg to stand on in this scenario

Yes, I agree.

[RaoulIsidro]

A resident in a high rise apartment, from the balcony, took some video of the Sydney Fireworks in the Australian Idol finale over the Opera House and loaded this on YouTube.
It was pulled down by YouTube because the Australian Idol management complained of "copyright infringement".

http://www.youtube.com/user/kensingt.../4/BtKE11K3EtU

[maccaroneski]

I think that might be a matter where youtube pulls down video because someone complains about copyright infringement, irrespective of whether there has actually been a copyright infringement.

[TonySlattery]

Take Cycling here. Some of the cyclists have high profiles, so I would be wary of selling photos without a model release, cause you could find they (the exclusive rights photographers, or the athletes themselves) come at you from a legal aspect using that as the main drive for the action they decide to persue. I agree that in public space they cannot stop you taking the photos, but i feel selling them might be a legal minefield if shots of sports 'stars' are involved. My thoughts only here.

Interesting discussion

Are cyclists any different to movie stars? Taking paparatzi style pictures of the cyclists and selling them for hundereds of thousands of dollars, now wouldn't that be a dream job.

[ricktas]

Are cyclists any different to movie stars? Taking paparatzi style pictures of the cyclists and selling them for hundereds of thousands of dollars, now wouldn't that be a dream job.

Fair enough if the cyclist was out on the town, same as a movie star, AFL player etc. Try taking a photo of an AFL player on the oval, or an Australian Cricketer on the paddock, you are quite restricted about what you can do with those, certainly if you started trying to sell them, the governing bodies of those sports and most likely the player's lawyer would be contacting you.If a cyclist wished to, I am sure he/she could find a lawyer willing to take that perspective and drag you into court basing it on the track being the cyclists 'work place'. We live in a very litigious society, so asking before doing so here, would be a wise decision.

[kiwi]

I dunno, my workplace is a public place then I can't see how there is any possible way you stopping me taking pics and exploiting them by selling prints etc. Commercial use is more problematic but I think say if you didn't include a specific endorsement from the athlete it would be an interesting court case

[Darey]

The "Cole Classic" (spelling) is an annual swimming event from Sydney's Shelley Beach to Manly Beach and I think it is on next weekend.
The organisers of the event issue "exclusive rights for photography" and there is hearsay they have been heavy on some amateur togs attempting to shoot the event in previous years.
A friend of mine owns an apartment which overlooks the swim course and I intend shooting the event from his balcony. I wonder if I could sell the Manly Daley some shots?
Just stirring.