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Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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From the thrilling gold-medal finish of the women’s soccer team to Andre De Grasse becoming the first sprinter to bring home gold since 1996, there was no shortage of exciting moments for Canadians at Tokyo 2020. Penny Oleksiak made history as the country’s most decorated Olympian of all time. Jamaica’s Elaine Thompson-Herah also made history in Tokyo as the first woman to win gold in the 100 and 200 meters in consecutive Games. After posting footage of her impressive feat and her family’s celebration to Instagram, Thompson-Herah was, as she , “blocked on Instagram for posting the races of the Olympic because [she] did not own the right to do so.” The New 91��ɫ Times that a spokesperson for Facebook, Instagram’s parent company, confirmed that it removed Thompson-Hera’s video but claims her access to the app was mistakenly suspended.

The International Olympic Committee (IOC) athletes to share Olympic Games content on their personal social/digital media accounts or website unless it contains audio/video of the areas referred to as the Field of Play (“the area used for a sporting competition or ceremony”) or Back of House (“non-public areas, within and/or surrounding a venue”). IOC regulations are only one of the many sets of rules that surround the intellectual property (IP) of the Olympic Games. James Bikoff, who has extensive experience litigating the IOC’s trademarks, on an episode of that, depending on the country, Olympic IP can be protected by national statutes (see �䲹�Բ��岹’s ), the (which Canada is not a contracting party to, but are), and special protection for the words “Olympic” and “Olympiad” in various languages across the generic top-level domain names (e.g. .com, .org).

�䲹�Բ��岹’s Olympic and Paralympic Marks Act (OPMA) was enacted in 2007 and includes a list of 39 protected Olympics-related marks in Schedule 1. Although one might think that this statute contains all of the necessary information on Olympics-related marks in Canada, matters are further complicated by the fact that the Canadian Olympic Committee (COC) continues to register marks not found in OPMA as official marks under the . Teresa Scassa �䲹�Բ��岹’s official marks system – which allows “public authorities” to sidestep the application and review process otherwise required�� – ��as “anomalous and downright dysfunctional.” The result of COC’s registering of official marks is that certain marks (e.g. ) enjoy simultaneous protection as official marks and under the OPMA, and may continue to receive protection under one after being removed from the other. Another odd result is that certain marks (e.g. the ) are protected as an official mark but not under the OPMA, which may present difficulties as certain businesses look to the OPMA to check their compliance. ��

Canada is not alone in facing criticism for its extensive protection of Olympics-related IP. During her time as a trademark law professor at Drake University, Shontavia Johnson wrote that she the laws created solely to protect the Olympics had been stretched too far. She described her concerns, which include the high level of difficulty for companies, especially small businesses, to know when their activities are illegal and obtain permission to do the right thing. Johnson also explained that most American Olympic athletes scramble to make a living, and that the IOC and national Olympic committees exercise a tight control which may prevent athletes from profiting off of the value which they create for the Olympic Games.

restricts social media posts and advertisements published by athletes and sponsors during the Games, both in volume and content. These restrictions on permitted publications may deter smaller companies who cannot afford to become official Olympic sponsors but who would gladly sponsor an individual Olympian from doing so, either because they feel it would result in an unsuccessful campaign or because they are afraid of accidentally breaking the rules. In Canada, even to congratulate an athlete they sponsor, companies are not permitted to use a multitude of hashtags or words that generate social media buzz, including Tokyo 2020, Olympics, #teamcanada, and #summergames. ��

In light of the popularity of Olympians posting on social media platforms like during Tokyo 2020, it will be interesting to watch for potential clashes between athletes and governing bodies related to IP at Beijing 2022. As social media posts generate buzz and draw fans, spectators will have a chance to enjoy getting behind-the-scenes looks and instant updates from their favourite athletes. This may drive some policy changes. On the other hand, Michael Lynch, a veteran sports marketer, IOC’s IP as its “primary asset.” Striking a balance between generating ample revenue to support athletes and events and serving the interests of individual athletes, sponsors, and fans seems an Olympic balancing act.

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Claire��Wortsman��is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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There is something odd about the roster of lucrative celebrity endorsements. I am not just talking about how Dwayne “The Rock” Johnson Kylie Jenner as the highest paid celebrity on Instagram. I am referring to the fact that a number of these celebrities are no longer alive. Death will not stop the likes of , , , , or from promoting branded face masks. Nor will it stop Martin Luther King, Jr. from providing the voiceover for or Fred Astaire from dancing with vacuum cleaners in . ����������������

In a reality where being alive is no longer required to be advertisement, and where celebrities are at constant risk of public shaming for their missteps, the rise of the dead influencer will likely intensify in the coming years. But should corporations be allowed to exploit posthumous personae as brand ambassadors, possibly without the consent of the deceased’s estate?

The use of one’s likeness is governed by personality rights, referred to as the and privacy rights. These rights, and the degree to which they are extinguished upon death, vary across jurisdictions.

Of the 13 provinces and territories, British Columbia, Manitoba, Newfoundland and Labrador, and Saskatchewan have statutory protections for personality rights enshrined in their privacy acts, including the right to sue for misappropriation. Within those privacy laws, only Manitoba refrains from explicitly stating that personality rights are extinguishable upon death, creating ambiguity as to the duration of its protection.

Additionally, a common-law remedy for the unauthorized use of one’s likeness is available throughout Canada (aside from Quebec, who has protections in ss. 3, 36 of their ) under the tort of “appropriation of personality,” established by the 1973 Ontario Court of Appeal decision, This tort protects the right of publicity. In 1996, the court in suggested that the right of publicity, like copyright, should be inheritable. However, the court did not suggest how long after one’s death the right should extend.

As the market for posthumous celebrity endorsement grows, legal challenges will likely arise and bring light to this gray area. Opinions on how to best resolve the competing interests of celebrities, estate administrators, fans, advertisers, and the general public vary widely. While believe that competing interests are best addressed by allowing celebrity personae to largely fall into the public domain upon death, are concerned for the dignity of the dead and would prefer that the law places substantive responsibilities on those controlling their rights to ensure their likeness is not misused.

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At first sight, Prince’s new exhibit might seem like a blatant infringement of copyright, but as with all of his work, Prince plays with details. When trying to determine whether a certain work falls under fair use, US courts look at : 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 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. However, the underlying concept at the core of the fair use doctrine is the concept��of transformative work: “in order to qualify as fair use, a new work must generally alter the original with ‘.’” Thus, the more transformative the work is, the ��the consideration��given��to��those other factors will be.

Combining��all these elements makes it difficult to��predict the��outcome of a potential lawsuit against Prince. The only addition��to the original��pictures, aside from Instagram's distinctive��visual characteristics, is a comment from what seems to be Prince’s very own account on the social media platform. Whether or not such an addition could be considered enough to make New Portraits transformative is uncertain. Courts have that “cosmetic changes [to a certain work do not] necessarily constitute fair use. A secondary work may modify the original without being transformative.” As explained in ��(Prince's most recent infringement case), such a transformation must be noticed by a “reasonable observer,” the artist’s original intent therefore being irrelevant. The application of the reasonable observer test has not been clarified��further��by the Second Circuit.

As with the majority of Richard Prince’s work, New Portraits has sparked very polarized reactions. Some have acclaimed the artist, qualifying his art as “,” since Prince’s work “.” Yet, regardless of the praise the appropriation artist has received��from connoisseurs such as , art critic for the New 91��ɫer, see New Portraits as intellectual laziness. go as far as saying that his work has no inherent value, and the only explanation for��people’s willingness to shell out so much money for his work is that it hangs in a gallery.

So far, none of the concerned original posters have expressed a desire to sue Prince. The most proactive action against the artist has been taken by Missy Suicide, founder of the model website Suicide Girls. Following Prince’s use of five screenshots��from Suicide Girls’ Instagram account, she��decided to take an alternative route and of those screenshots for 90 dollars (a choice Richard Prince whatsoever).

The��lack of legal action to date does not necessarily mean there is no case to be made. think Instagram might have one, contractually speaking. According to their , users of the social media platform cannot “reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.” Considering the nature of Prince’s exhibit, the appropriation artist seems to have��contravened those terms. However, while suing the artist who seems appealing, some believe it might just play into his favour.�� That is, such a decision could make Prince “,” therefore adding a new message these photographs.

Regardless of Prince’s intentions, his work undeniably offers��occasion to question our current copyright system. As fair use is an institution whose purpose is to “,” it is a legitimate concern to ensure��its��current boundaries allow copyright law to successfully meet that goal. New Portraits might not please everyone, but��changes are��often��sparked by controversy and that is a game at which Richard Prince clearly excels.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal��

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Instagram, Twitter, Pinterest and Facebook. All 4 are some of the world’s largest social media services. These services, and others like them have been gaining more and more traction as the number of internet users increases worldwide. However, as Instagram users, users might be unwittingly allowing these services to use not only the information they post but the content they share using these services. In December, Instagram proposed changes to their Terms of Use policy that seemed to give Instagram the ability to use and sell users' posted content and information without additional compensation to the user in question.

Once this became widespread knowledge online, the was almost unanimous. In an attempt to mitigate the public relations backlash, Kevin Systrom – co-founder of Instagram – attempting to clarify what the new terms meant and stating that the particularly offending terms would be removed when the new Terms of Service and Privacy Policy document came into effect on January 19^th, 2013.

A news story such as this brings to the forefront a number of issues that have economic, legal, technological, and privacy-related implications. An in-depth discussion on these topics would provide enough material for a term paper (or two), so the following will be a brief outline on the major discussion points that law makers, service providers, and users should keep in mind as they move into the future.

The first consideration is that consumer contracts, such as the Terms of Service (also seen in forms such as the End User Licence Agreement), have been held as valid contracts by the US and Canadian courts in such cases as and . These cases dealt with shrink-wrap licensing – a practice used by a number of software manufacturers in the past in which a person opening the product packaging would be found to have agreed to the terms of use contained therein. While most social networking sites such as Instagram have users agreeing to terms by the use of click-wrap licensing (users agree to the terms by clicking “I Agree”), the same principles apply and courts have found these consumer contracts equally valid in most circumstances.

While consumer contracts like Terms of Use and End User Licence Agreements are ubiquitous in the digital age, how many people actually read and understand them before accepting is an interesting question. Typically, creation of a contract requires a “meeting of the minds”. In the context of these types of contracts, having the opportunity to understand the terms but failing to do so will still result in a valid, binding contract if the terms are agreed to. While this hardly seems to be the “meeting of the minds” that is normally required, taking this approach allows for efficient contracting between the public and corporations. Some could argue that the beneficial economic reasons for finding these agreements enforceable validates the approach and that individuals must take responsibility for the agreements to which they agree. However, the reality is that the majority of the public accepting these contracts would not understand the terms even if they took the time to read them (an action that is unlikely to happen in the first place). Many that click “I Agree” are crossing fingers with the other hand and hoping for the best.

In a way, this approach to contracting relates to the privacy issues that these types of social media services represent to the public. Many of these services are free and for many of them, the way they obtain revenue is through the information its users provide.�� Facebook has a page detailing – for example, the service can use your personal��information to determine age-appropriate or interest-directed advertising. While some may be ok with this kind of a use, there are many that worry of the implications it has on their personal information. What if it is sold to companies that abuse it? What if it is stored in an unsecured manner and accessed by hackers (as happened to a number of Sony Online Entertainment users )? More importantly, if users are given a click-wrap licence that sign away their rights to privacy without exceptional notice to what the information they provide can be used for, we can begin to see why some may not agree that the current system is workable.

If nothing else, stories like these should show the general populace that it is important to read and understand the terms that computer software programs and online services offer to you, and as the age-old saying goes: if it’s free, it’s probably too good to be true.

Adam is a JD Candidate at Osgoode Hall Law School.

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