Wikilegal/Copyright Ownership Status of Media Captured During the PyeongChang Winter 2018 Olympics

Background

The Wikimedia Community has asked us about the ownership status of the media captured during the PyeongChang Winter 2018 Olympics. This discussion stemmed from the following clauses of the Official Ticketing Terms And Conditions:

• Ticket holders may capture or record still and moving images and sounds of athletes and events taking place within venues and agree that the IOC shall be sole owner of any intellectual property rights (including copyright) in such content without further authorization from, or compensation to, the Ticket Holder or anyone acting on his/her behalf, and thereby assign any rights he/she may have in respect of such content to the IOC, including without limitation to make derivative works, waiving all moral rights in the same. (5.3)
• The  IOC grants  to Ticket Holders with  a limited and revocable  license to use the still  and moving images and sounds taken  or recorded within Venues provided that such use is personal, private, non-commercial and non promotional. (5.4)

This ticket clause creates both a copyright and contract law issue, and countries differ in their copyright laws and copyright transfer agreement regulations. Therefore, this article will provide some context on how both United States Laws and Republic of Korea Laws approach such clauses to assist with understanding what can be done with images taken during the 2018 Olympics.  

Please note that this article only covers the copyright status of the media capture during the Olympics events, and it does not cover other aspects such as the publicity rights of the people depicted.

Governing Law

A governing law clause is a contract provision that determines which jurisdiction’s laws should be followed in the event of a dispute about the contract. The ticket terms and conditions of the Winter Olympics has the following clause, “any dispute arising out of any transaction with PyeongChang 2018 are subject to and governed by the Law of the Republic of Korea.” The Korean Copyright Act also has a provision where it states that the work of foreigners must be protected in accordance with the treaties which the Republic of Korea has acceded or concluded. However, the works of foreigners who permanently reside in Korea or foreigners’ works which are first made public in the Republic of Korea are protected under the Korean Copyright Act. This all means that it’s likely that most disputes arising from the Olympics’ ticket terms will be governed by the laws of the Republic of Korea.

Copyright

Copyright is actually a bundle of rights (such as the right to make exact copies, the right to make derivative works, and the right to display the work publicly), and any part of that bundle may be assigned through a license agreement. Depending on the jurisdiction, some or all of the rights may be assignable. The various rights include exclusive economic rights such as reproduction, preparing derivative works, public distribution, public performance, and public display, and some non-economic rights such as moral rights.

Additionally, some countries, such as Germany, allow only licensing of economic rights, while both the US and South Korea allow both licensing and transfer by assignment. A license means the original creator still owns the copyright, whereas an assignment means the original creator does not own the copyright and has instead given all of their rights to someone else. Note that in some countries, it is impossible to assign moral rights, which can make a determination about who has what rights under copyright law vary depending on the location of the people involved.

South Korean Law

The Korean Copyright Act (Art. 45) states: “(1) Author’s economic right may be transferred by assignment in whole or in part. (2) Where author’s economic right is transferred by assignment in whole, the right of the production and use of a derivative work under Article 22 shall be presumed not to be included in the transfer, unless otherwise stipulated.” Therefore, the Law of the Republic of Korea does not prohibit such a transfer by assignment; and an agreement, as it does with the ticket terms here, should explicitly write out the inclusion of the right of the production and use of a derivative work in order to transfer these rights as well.

A work does not need to be registered in Korea to be protected, however, transfer by assignment of author’s economic right must be registered in order to bind third parties. In other words, if a work is not registered in Korea, then even if an author transfers it, other people do not have to follow the demands of the person who received the copyright in the agreement under Korean law. In theory, such a transfer by assignment between the International Olympic Committee and the purchaser would be binding, but either assignee or assignor should have made a group registration of the transfer to the Minister of Culture, Sports, and Tourism to bind third parties.

Finally, the ticket terms clause also includes a part where the purchaser  purports to agree to waive his/her moral rights. Moral rights are personal rights that connect the creator of a work to their work. These rights include the following: the rights of public disclosure, preservation of integrity, or identity of the work, and attribution of authorship. The Republic of Korea is one of the Berne Convention signatories that have strong moral rights protection. Thus, the moral rights are inalienable, or in other words, not transferable. Waiving moral rights is another option in some countries such as Australia and Canada, however, according to South Korean practitioners, these rights cannot be waived in the Republic of Korea.  

United States Law

The US Copyright Act, 17 U.S.C. § 204(a) states: “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

The clauses at issue set forth a transfer by assignment of all economic rights of an author, the person who ordered, purchased, held, or used the ticket to enter the premises, for the media captured during the Olympics, including still and motion pictures of athletes and events. Therefore, such a transfer seems possible under the U.S. law. However, the statute’s language raises a question on the signature requirement, as it is vague whether this requirement could only be satisfied by wet-ink signature (i.e. actual paper and pen). This might be because the U.S. Copyright Act was codified in 1947 and updated in 1977, and the possibility of signing documents online/electronically probably could not have been foreseen during that time.

In Metropolitan Regional Information Systems, the terms of use assigning exclusive rights to the MRIS was electronically ‘signed’, and the court applied the E-Sign Act, 15 U.S.C. § 7001(a) to the issue. The E-Sign Act defines electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” The Metropolitan court held that when the terms were clear to the users, by clicking “yes” to the terms of use, users showed their intent to assign their exclusive rights to the MRIS. Therefore, under the E-Sign Act, an agreement transferring the exclusive rights of a copyright owner can be formed with an electronic signature. Thus, the signature requirement might not be a valid defense to render the transfer by assignment unenforceable.

Contract Law

A valid transfer contract requires a meeting of the minds and manifestation of assent. Parties should be equals and the terms should be clear and understandable by parties. A lack of understanding and an inequality of bargaining power would lead to an unfair agreement, and this could be potentially used as a defense to render a contract or a clause void. The Restatement Second of Contracts §211(3) (1981) states, “where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.”

Ticketing for the Winter Olympics had been mostly done online. There are two types of contracts online ticketing websites generally present, “clickwrap” or “browse-wrap.” The IOC ticketing page is not active anymore, however, both types of agreements could have been possibly made between the IOC and the purchasers without much difficulty due to nature of the IOC ticketing website.

Browse-wrap

Browse-wrap is a type of contract that a website can bind a user with its terms and conditions when a visitor browses or otherwise uses the website. There are two requirements to make browse-wrap a binding agreement. First, there should be reasonably conscious notice of the existence of contract terms. In other words, if a customer has access to the website and the terms and conditions are visible in an appropriate location with a hyperlink to the full agreement, the courts usually consider this requirement as satisfied. Second, the customer should have an undisputed manifestation of assent to those terms.

Clickwrap

Clickwrap is another type of contract  where the terms are presented to a user along with a button that says “I agree” or “I accept.” As a result, a simple click-through is enough to establish a valid agreement between parties.

Unconscionability Defense

There are a limited number of defenses that could be used to render a contract void or voidable. Unconscionability is one of them, and the Restatement (Second) of Contracts §208 (1981) states,  “if a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.”

Unconscionability has two elements, procedural or substantive, that a court needs to evaluate to refuse the enforceability of a contract or a clause. The procedural element focuses on oppression or surprise due to unequal bargaining power, while the substantive element focuses on overly harsh or one-sided results.  The California Courts tend to render clauses like arbitration clauses unconscionable, as these clauses are so one-sided as to shock the conscience or that impose harsh or overwhelming terms and create unequal bargaining power. As a result, the more substantively burdensome the contract term, the less evidence of procedural unconscionability is required to come to the conclusion the term is unenforceable.

The Intersection of Traditional Paper Tickets with Unconscionability

Courts generally apply “the reasonable communicativeness test” to each contract to determine unconscionability. The reasonable communicativeness test has two steps; first, the physical characteristic of the ticket should clearly display the term to the consumer, and second, the court should look into the surrounding circumstances to be considered including the purchaser’s's familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the purchaser received outside of the ticket. In Steven v. Fidelity and Casualty Company of NY, the court held that instead of focusing on the unfairness of such clauses in the abstract, the courts should focus on the enforceability and fundamental fairness of particular clauses at issue. As a result, unjustness or unconscionability should be decided by the courts on a case-by-case basis by applying tests specifically developed for unconscionability.

What about the Resellers?

Regarding reselling of the tickets, the TOC 2.6 states, “When purchasing tickets, the Ticket Purchaser agrees that they will make any associated Ticket Holders aware of all the relevant rules and regulations regarding the Ticket Holder’s use of a Ticket to attend a Session at a Venue. Specifically, the Ticket Purchaser agrees that they will bring the Spectator Policy attached to these Terms and Conditions to the attention of any Ticket Holders who intend to use tickets acquired by the Ticket Purchaser.”

Residents of countries outside of South Korea mostly purchased their tickets from resellers, either authorized or unauthorized. However, when some of these websites are analyzed, it is not clear if they’d actually included or at least hyperlinked to the ticket terms of the Winter Olympics. Considering this would have been the case with some of the websites, it cannot be said that the notice requirement test or reasonable communicativeness test would have been satisfied. This might have created a binding agreement between the first buyer and the IOC, but this cannot be enforceable to the second or subsequent buyer, as there is no meeting of the minds, no acceptance by the second buyer, or no manifestation of assent.

Conclusion

The question of who owns the copyrights in Olympic photos from 2018 is unfortunately difficult to generalize, and it may require a case-by-case basis analysis. It could also hinge on small details such as whether a specific copyright is registered or what kind of signature and agreement was used for the sale of a ticket on the website, as well as whether a specific photographer was a direct purchaser from the IOC or from a reseller. As is seen above, both copyright laws of the countries mentioned allow transfer by assignment of economic rights in general. Therefore, this boils down to more of a contract law issue, and the enforceability or possible unconscionability of the clauses at issue could only be analyzed by a court using the court-created tests. In the best case for free knowledge, an individual photographer would have purchased their ticket second-hand without having been shown the appropriate terms and the IOC would not have properly registered the copyright, giving that photographer a very high chance of still owning the copyright in their work. In the worst case, the IOC followed all proper procedures and the photographer was clearly shown all the terms, making it likely that the IOC is now the owner of the copyright in such a photographer’s works.

Emine Ozge Yildirim

Legal Fellow