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From Rio Olympics to rights of publicity

Natalie Rahhal finds out what will be covered in some of this week’s INTA sessions devoted to IP issues in Latin America

Few greater opportunities exist for brands to maximize their exposure than sponsoring international sporting events like the FIFA World Cup and the Olympics. The prestige of sponsorship is threatened and diluted, however, by illegal ambush marketing campaigns launched by non-sponsor competitors associating their brands with these events through suggestion rather than official affiliation.

Social media and viral marketing have further complicated the process of monitoring the content of non-sponsors’ marketing campaigns during these events. A session tomorrow on ambush marketing and social media will present takeaways from past attempts to address ambush marketing surrounding major international sporting events as well as new strategies planned to be applied to the 2016 Rio de Janeiro Olympics and Paralympics.

Rule 40 explained

The Olympic Charter includes Rule 40, an agreement between the International Olympic Committee and athletes that establishes a “blackout period” during which the athlete’s name and image cannot be used by any non-official sponsors of the Olympics. If an athlete is found to be in breach of Rule 40, he or she can be barred from participation and/or stripped of a medal.

While Rule 40 goes a long way to protect official sponsor-brands, if enforced, it puts athletes in a precarious position. Particularly in the aftermath of the 2012 London Olympics–and controversies surrounding advertisements such as leaked photos of Michael Phelps’s appearance in Louis Vuitton advertisements—the rule has been criticized as being enforced too strictly by some local Olympic Committees and for being disadvantageous to athletes.

“The Olympic Games is their big chance for exposure and most of their money comes from sponsoring agreements, so there has been a lot of debate about how this rule should be enforceable against the athletes,” says José Eduardo de V Pieri, an IP attorney with Barbosa, Müssnich, Aragão in Rio de Janeiro, Brazil. Pieri, who will speak on the panel, added that Rule 40 is designed not only to protect the official sponsors of the Olympics, but also the athletes themselves. This has become particularly important in recent years.

“[In ambush marketing matters involving] social media, we have to apply Rule 40,” he explains. “This will be a very big challenge because social media has become a channel of marketing. So you have a famous star athlete, and he uses his social media—and he even is paid to use his social media—to market and attract media to a brand’s products. So if we have a Rule 40, how will we find a balance between what [from] the star athlete is just a regular tweet, or regular post or what is not? It’s the million dollar question.”

However, the rule defers to each participating country’s local Olympic Committee, which can choose whether or not to enforce the rule, so the answer will depend upon how each participating country chooses to enforce Rule 40.

Ambush marketing so deeply affects the Olympics and its sponsors that it is virtually impossible for a country to place a successful bid to host the games without the enactment of considerable legislation against the tactic. The same is true for bids to host the FIFA World Cup, a contest that Rio de Janeiro was part of only two years ago.

“From Brazil’s perspective, it’s very clear that the courts now know what they’re talking about and the FIFA World Cup was a good test,” says Pieri, who advised Brazil’s local World Cup Organizing Committee. “For the first time, Brazil had a specific legislation on ambush marketing, protecting FIFA and their sponsors. The law was so effective that FIFA did not have to use the law in its favor to enforce its rights and avoid ambush marketing in Brazil.”

CT51 Ambush Marketing and Social Media: Lessons Learned before the 2016 Rio Olympic and Paralympics Games takes place on Tuesday from 3.30 pm to 4.45 pm.

Right of publicity

Right of publicity issues “are so trendy right now, because everyone has an image out there, and wants to protect it, and make money on it,” says Alicia Lloreda, who is moderating a panel on rights of publicity and free speech across the Americas on Wednesday. The panel aims to demonstrate regional differences in the applications of rights of publicity and rights of free speech in Latin America and the United States.

“These two rights—right to publicity and freedom of speech—in most countries are regulated and are protected by the Constitution and by case law, but they don’t have a special law, so what happens in each region varies a lot,” Lloreda says. Four sample cases will be presented to the panelists, who will present the strategic approaches they would each take if the case were filed in their jurisdictions.

Historically, U.S. courts have leaned toward the protection of freedom of speech and artistic expression, but this may be shifting. “In the U.S., I think it’s gone from fairly predictable and favorable to authors, to less predictable, and less favorable towards authors. I think that trend is spearheaded by the revolutions in technology, which are only going to explode with virtual technology coming online,” says Jeremy Kaufman, a panelist and a vice president at Fox Entertainment Group.

It is now relatively easy to make a believable, digital reproduction of a specific person, without his or her presence. The onus is now on authors to pass a “transformative test,” Kaufman says, proving that the work that uses an individual’s image is more than a “faithful reproduction,” and adds commentary to that person’s identity, or uses it to tell an original narrative.

A person’s right to publicity is intended to protect their identity from use for another’s commercial gain, a factor which must be weighed against authorial intent. “What you want the court to do and you see in some cases is to balance which [party] is taking a profit from the situation. Freedom of speech is protecting an art...but on the other hand, are they leaning on the image of this person to do so? Are they taking some kind of profit or getting known by the public because of that?” asks Lloreda.

Because there is no specific legislation pertaining to right of publicity in Latin America, these issues are often handled in ways more closely related to IP law, through such measures as notice and takedown procedures. These methods are frequently used by social media and e-commerce platforms to address accusations that a user’s content is infringing another’s right of publicity, and—at least in Latin America—they may be more effective than broad-sweeping legislation for the time-being. The balance of the right of publicity and freedom of speech is so dependent upon the specifics of each case, says Lloreda, that it would be difficult to establish useful regulations beyond the applicable provisions of Constitutional, copyright and trademark laws.

In the past, right of publicity has ­primarily been used to protect the rights of celebrities in the sports and entertainment industries, whose livelihoods rely almost exclusively upon their identity and established fame. “With social media, people became famous instantly. This is why this subject is so important right now, because now, to be famous, you just need to upload a video to YouTube and if it’s interesting you become famous immediately,” says Lloreda.

This, coupled with the exponential increase in content being published and republished online, makes it harder to determine the ownership of content, and under which rights that property is protected. “In an environment where sharing and republishing is so common and really an accepted practice, it makes it more difficult to reasonably be able to control your identity,” Kaufman says.

RW02 Latin America Regional Update: Balancing Rights of Publicity and Free Speech Across the Americas takes place on Wednesday at 10:15 am.

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