|Pre-Olympic diving - no athletes are identifiable|
What is the legal position? In the UK, assuming that the athletes didn't own the copyright in the photographs (which is unlikely), there wouldn't be much that the Olympians could do about this usage. Their best case would be a claim for "false endorsement" (a la Irvine v Talksport) or, less promisingly, another form of passing off. All of the images appear to have been taken of the athletes in sporting action so no privacy concerns would arise.
By contrast, the US has an established image or personality right (which varies on a state by state basis). Guess which jurisdiction the athletes decided to sue in?
At least 18 athletes have filed a lawsuit in Los Angeles which claims (1) false endorsement (i.e. that by using their names and faces, Samsung is creating the impression that these athletes endorse their products); (2) Samsung is denying the athletes compensation for the use of their names and images; and (3) violating Section 3344 of the California civil code, which makes it a crime to use someone’s name, voice, signature, photograph or likeness for commercial purposes without the person’s explicit permission. The claimants argue that Samsung did not receive their permission. According to the claimant's lawyer “California law says you can’t use anybody’s name or image to market a product unless you have their consent.” Samsung's usage is alleged to be a problem because (a) the claimants have deals with some of Samsung's competitors and those deals are potentially put in jeapardy by Samsung's actions and (b) tying the athletes to this sort of product will make it harder for them to get endorsement deals in the future.
The number of athletes in question may actually help reduce the likelihood of success. A quick scan of the California code reveals, at subsection (e) that:
The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).The exact use of each of the images is not completely clear but it appears that they are buried within a facebook app rather than prominently on display and thus the damage, if any, may be fairly minimal. On the other hand, the Olympics are so huge (and the sponsorship is so tightly regulated) that any form of usage in connection with a sponsorship campaign may cause a great deal of damage to the athletes.
Samsung claimed in a statement that it had worked closely with the United States Olympic Committee for more than year and followed the appropriate procedures in communicating with the athletes.
This case will, hopefully, settle but it offers an important reminder for photographers (in particular although similar issues can apply to graphics artists etc) and those intending to use identifiable images of persons in ad campaigns to make sure that the rights are cleared in all jurisdictions where the images will be used.
It will be worth keeping an eye on the forthcoming law on personality/image rights recebntly proposed by and debated in Guernsey in the wake of this type of dispute ...
Good point Thorsten. Re the Guernsey proposals, Jeremy summarised the pre consultation position on the IPkat here: http://ipkitten.blogspot.co.uk/2012/02/from-draft-to-wind-of-change-guernsey.html. Personally, I'm inclined to agree with Merpel.
It has been reported that the plaintiff's lost the dispute as the application was deemed to be protected free speech, based on the public's obsession with athletes background. Any word on when the appeal will be? I read somewhere that they are appealing.
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