Creative Commons Olympics. How Big Media is Learning to License From Amateur Authors

NBC Universal’s decision to use Creative Commons-licensed photographs in an Olympic broadcast is an example of how media conglomerates are experimenting with collaboration with amateurs, but it also reveals potential problems of letting non-lawyers negotiate copyright licensing agreements. In the process, NBC’s producers nearly opened the door for a multimillion-dollar infringement law suit. To avoid such pitfalls, media companies need to adopt policies and best practices for using amateur licensed works. These guidelines should instruct how a production can attribute collaborating authors and how the Open Content licensing terms affect the licensing of the productions. The guidelines should also instruct how producers can seek alternative licensing arrangements with amateurs and contribute back to the Open Content community.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.