The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Saturday, August 21, 2004
 

Bush campaign ad's illegal use of Olympics?


What looks like some blatant shilling for Kerry from Salon - and, perhaps, the USOC.

A piece on the Salon politics blog by Mary Jacoby from Friday focuses on
A sunny new Bush-Cheney campaign ad touting the participation of two new free and democratic countries at the Olympic games in Athens -- Iraq and Afghanistan...

Apparently,
The United States Olympic Committee, which has exclusive rights to the words "Olympic" and "Olympiad," as well as Olympic symbols such as the five interlocking rings, has asked the Bush campaign for a copy of the ad so the U.S.O.C. can evaluate whether its copyright has been infringed.

What?

The possibility of a copyright infraction supposedly arises because of a provision in the snappily titled Ted Stevens Olympic and Amateur Sports Act of 1999 (text) [1].

According to the fruits of Ms Jacoby's scholarship, the Act
grants the U.S.O.C. its rights, says the committee has exclusive use of the words "Olympic and "Olympiad," but not "Olympics" in the plural.

She continues
Technically legal or not, the ad certainly violates the spirit of the law, which is to prevent the Olympic brand from being diluted and sullied by political or commercial uses.

The provision we are talking about, though Jacoby declines to help the reader out with this, is §220506, which, in sub-section (a), says,
Except as provided in subsection (d) of this section, the corporation has the exclusive right to use-


.

.

(4) the words "Olympic", "Olympiad", "Citius Altius Fortius", "Paralympic", "Paralympiad", "Pan-American", "America Espirito Sport Fraternite", or any combination of those words.


So, merely by quoting from the Act, I have infringed the USOC's copyright, then?

Of course not. According to this note from a law firm, emphasis mine
the USOC has more than mere trademark rights in the Olympic words and symbols; it has the exclusive right to use the terms and symbols in trade.

The note quotes the US Supreme Court in San Francisco Arts & Athletics, Inc v. United States Olympic Comm:
The protection granted to the USOC's use of the Olympic words and symbols differs from the normal trademark protection in two respects: the USOC need not prove that a contested use is likely to cause confusion, and an unauthorized user of the word does not have available the normal statutory defenses.

It is implausible, on statutory construction grounds alone, without bringing in the First Amendment, for crying out loud, that the USOC could stop the use of the word Olympic in a newspaper article or novel or movie. (Rights in coverage of the Games is a different matter.)

Notably, the enforcement provision referred to in sub-section (c) applies only to
uses for the purpose of trade

If the exclusivity was supposed to apply to non-trade uses - as in Bush's campaign ad - then surely the USOC would have been given an enforcement mechanism.

And the grandfather clause in sub-section (d) clearly also applies only to trade use.

Why the Salon journo might have gone wayward one can understand: why the USOC should have started the wild goose chase is more baffling.

Except ad terrorem, to show it's prepared to take a maximalist view of its rights under the law.

Whatever the reason, the impression given is that the USOC is stunting for Kerry. Good way to protect the Olympic ideal? A vous de juger.

  1. The title of the Act on the USOC is deeply misleading! I have been up hill and down dale on THOMAS: what it calls the Ted Stevens, etc Act is the part of the US Code enacted by PL 105-336, an act, according to its title,
    To revise, codify, and enact without substantive change
    pre-existing legislation.

    Ted Stevens' role as legislator, was to introduce, as a rider to an appropriations bill, enacted as 105-277 §142 (get from GPO - THOMAS link on the fritz), piffling amendments to include the Pan-American games in the list of protected names (this law firm note explains the background). It is this rider which is the

    Ted Stevens Olympic and Amateur Sports Act of 1999
    - and not the whole set of provisions (now at 36 USC 220501 et seq). And, of course, Jacoby's reference to 1999 is wrong, too!

    [I see now that the lawyers' note confuses the two acts. Jesus wept!]The text and history of 36 USC 220506.



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