|September 20, 2012|
Previously published on September 2012
As Barack Obama and Mitt Romney campaign for the presidency and the title of Most Powerful Man in the Free World, each man and their supporters have determined that there are some powers even they dare not challenge - like the Olympics.
On July 25, Priorities USA Action, a Democratic Party super PAC, pulled a political advertisement from the Web hours after receiving a warning from the United States Olympic Committee that footage from the 2002 Salt Lake City Winter Olympics used in the ad violated the Committee’s copyright. Priorities USA Action also agreed not to cut a version of the ad for television. Priorities USA Action’s advertisement showed clips from the 2002 Opening Ceremony’s parade of nations, highlighting countries where Romney has held foreign investments or bank accounts or to where he allegedly outsourced jobs. The next day, a political ad released earlier in the year by Mitt Romney’s campaign that included a short clip from the Salt Lake City Games was marked “private” on the Romney campaign’s YouTube page.
“The Olympic Games are a celebration of friendship, excellence and respect,” USOC spokesperson Patrick Sandusky said. “The attacks, using Olympic themes and images, need to stop.” The USOC’s warning was backed by the International Olympic Committee, whose spokesman said that it “does not allow footage of the Olympic games or an association with the Olympic rings to be used for political purposes, in line with the Olympic Charter.” While the Olympic Charter does not specifically reference a ban on the use of Olympic marks by politicians or political movements, part of the “Mission and Role of the IOC” is “to oppose any political and commercial abuse of sport and athletes.”
Throughout its history, the modern Olympic Games have been a venue for powerful political and social statements - Jesse Owens repudiating Hitler’s propaganda in Berlin in 1936, Tommie Smith and John Carlos on a Mexico City medal stand in 1968. For decades, the Games turned United States and Soviet-bloc athletes into de facto single-combat warriors in quadrennial tests of Cold War supremacy. However, throughout that time the IOC claimed a position of political neutrality, and has been vigilant in protecting its brand from being co-opted not just by political organizations but by anyone who would use the word “Olympics” or use Olympic footage without license.
Four years ago during the Beijing Olympics, the IOC made a similar copyright infringement claim to try to remove a YouTube protest video titled “Beijing Olympics Opening Ceremony,” produced by the Free Tibet movement, in which the Olympic rings were briefly shown. (Under pressure from free-speech advocates, the IOC ultimately withdrew that claim.) In previous cases, the USOC forced the organizers of the “Gay Olympics” to change its name to the “Gay Games,” and, more recently, used the threat of a copyright infringement claim to prevent a man in Hebron, Maine from dubbing his games a “Redneck Olympics.”
Even Pippa isn’t beyond the reach of the five rings.
Some commentators have noted that it’s unclear whether such use of Olympic footage by presidential campaigns or their related super PACs could truly be outlawed. Priorities USA Action could have presented the argument that their ad was a “fair use” of the footage. The “fair use” doctrine allows for copyrighted material to be used without license for purposes such as criticism, comment, news reporting, teaching, scholarship and research. While “fair use” material is not always easily defined, Section 107 of the Copyright Act sets forth four factors to be considered: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. During this campaign season, the Romney campaign used a clip of President Obama singing Al Green’s “Let’s Stay Together”; after briefly being taken down from YouTube, the ad was ultimately declared a fair use of Green’s work and put back onto the video-sharing site.
But ultimately this was not a legal fight that either campaign was willing to have with the Olympic movement. “Once we were assured that Mitt Romney and his allies would be held to the same standard, we were glad to take the ad down from our website,” said Priorities USA President Bill Burton. And so the Olympics-starved among us are left to explore more important and confounding questions, such as the source of Bob Costas’ magical youth elixir.