The extraordinary events in Scotland last week, which saw every Scottish newspaper refusing to send their photographers to cover a friendly football match between Celtic and Ajax Amsterdam, generated a heated debate concerning press freedom, copyright law and the commercial exploitation of brands, writes Sarah Thomas.
Celtic, in an alleged attempt to clamp down on the unofficial commercial exploitation of the ‘Celtic’ brand, refused permission to any photographers seeking to cover the game unless they agreed to certain terms and conditions relating to the subsequent use of any photographs that were taken.
Leaving to one side the different interpretations given by both parties in this spat as to precisely what Celtic was trying to achieve, a cursory glance of some of the clauses the photographers were reported as being asked to sign up to does seem to indicate an attempt by Celtic to engineer the assignment of the copyright in any match photographs to the club.
The arguments as to why Celtic would want to do this are, however, not as distasteful as would first seem and, in
fact, highlight the ever-escalating power of ‘the brand’ and the struggles of non-traditional brand owners to protect and control their rights.
Celtic, and other successful sporting clubs, are typical of these ‘new’ brand owners in that it is only recently that the commercial value of their image has been realised and exploited for all it is worth.
David Beckham recently successfully renegotiated his contract with Manchester United to recognise the commercial value to the club of their ability to exploit his highly marketable and profitable image.
Formula One racing driver Eddie Irvine succeeded in the courts where other celebrities had failed and established that his image was worthy of protection against exploitation through unlicensed endorsements for which he was financially compensated.
Against this background it is not, perhaps, completely surprising that Celtic has sought to protect its rights in this way. Within the law as it stands it must use a mismatch of current intellectual property rights to protect its image and its players must, individually, do the same. The law of copyright and
trade mark infringement and now, thanks to Irvine, passing off, are just some of the tools in their legal armoury.
Celtic tried to use the law of copyright to protect itself before an infringement or otherwise had the chance to occur.
However, none of these legal remedies fit squarely with the nature of the rights they are being employed to protect and it is because of this that the actions of Celtic can look so unattractive and draconian.
One thing this skirmish has shown is that the current legal means of protection and redress are perhaps not the best means for asserting the rights of these ‘new’ brand owners. It is a subject lawyers have been debating for a while, in conjunction with the question of so-called ‘personality rights’ and whether this is a legal right that should be available in the UK.
As the likes of Manchester United continue to create and nurture world-dominating brands assisted by globally revered personalities, this may be a debate that will just not go away.
Sarah Thomas is a media/intellectual property lawyer at Charles Russell