ContestedFooty.com, an AFL commentary blog run by some university students in Melbourne, has received a Cease & Desist letter from the AFL. The AFL allege that the blog infringes their intellectual property rights - both the trademarks and the copyright in the AFL and team logos and names.

This appears to be another example of Australia's trademark laws being used to stifle legitimate commentary and critique. There certainly does not appear to be any source of confusion as to whether the bloggers are officially sanctioned by the AFL or the teams in question. The bloggers are not trading off the AFL's reputation, or representing some false connection with the league. Certainly the trademarks do not appear to be used as trademarks; the marks are plastered on the guernseys of the players - it's hard to show a picture of an AFL player without also showing the marks.

As for the copyright claims, these seem even weaker. We do have fair dealing for criticism and review and for the reporting of news, defences which the bloggers would seem to fit within without trouble. The bloggers say that their photos are original and that they're not reusing unlicensed photos.

If the AFL's demands are respected, this imposes a substantial chilling effect on speech. At its limits, it means that all commentary on AFL must either (a) not refer to specific teams or show pictures of players; or (b) negotiate (and pay for) a licence from the AFL - presumably also opening the possibility that the AFL will dictate the terms or even content of the commentary.

Luckily, sport plays a much bigger role in the Australian psyche than that. It is likely that the claims being made by the AFL are somewhat inflated at best. We hope that the operators of ContestedFooty.com are able to respond to the AFL and continue providing valuable critical commentary.

This cautionary tale, however, shows the importance of reasonable intellectual property laws. Nobody wants a situation where fans are unable to talk about their favourite sports, but our current laws encourage trademark owners to make these sorts of claims. Unfortunately, when made against bloggers and students, contesting these claims often becomes prohibitively expensive. I believe that both copyright and trademark law need to be simplified to provide clear space for this type of commentary, allowing bloggers and others to stand up for their rights.

8 comments

  1. I am not Lawyer but the site did have AFL players and therefor AFL logos and Jumpers,etc,etc in there logo. I am not sure if the photos of players in the logo where approved by the owners of the photos but they looked pretty professional and I believe that an outside part produced them. The main issue seems to be the Photos in the articles which as editorial content seem to be fine. The whole not mentioning of names of clubs etc in stories doesn't seem to hold water and in fact, from my understanding, was never asked to be taken down. In Fact the AFL's Media manger say so much in an Article in one of the papers. People that claim that is what the AFL are trying for are muddying the waters and taking off the real issue of whether the AFL would have a case to stop people using "User Generated Photos" on Commerial websites where the photos themselves aren't being sold (i.e. photos, posters, cards, etc).

    Just my 2 cents

    Comment by Phillip Molly Malone on 7 May 2009 at 21:21
  2. Molly,
    Everyone who has posted a blog post or written an article about the letter we received has in fact received a copy of the e-mail we were sent. The AFL media manager with respect, was not the man who sent said e-mail and further there has been no denial of the fact this was requested of us, just a comment that it wasn't the issue.

    James

    Comment by James Rose on 9 May 2009 at 08:32
  3. With regards to the photos- we produced all our photographic content ourselves bar what was in the banner (which we had produced by an outside source- who assures me he researched whether we could use it).

    Whilst the issue for some may be User Generated Photos on a broader scale for ContestedFooty the issue is everything we were asked to do rather than one section of the e-mail- as it should be.

    Comment by James Rose on 9 May 2009 at 08:34
  4. Comment by James Rose on 9 May 2009 at 08:45
  5. Ridiculous really. The blog is only promoting the game. The AFL should be embracing bloggers as newspaper sales slide.

    Comment by Mike on 12 May 2009 at 13:44
  6. I am not sure if the photos of players in the logo where approved by the owners

    Images employed on a fair comment/dealing basis under Australian law don't require approval by anyone in the organisation being commented upon. That's entire the point of Nic's post. I think you'll further find that under fair comment guidelines, it would not matter where the image/s came from, be that from the critic's camera or the AFL itself.

    Comment by weez on 12 May 2009 at 23:51
  7. Pingback: When brand protection goes terribly wrong | Online Marketing Banter

  8. Great post! I’ll subscribe right now wth my feedreader software!

    Comment by LnddMiles on 22 July 2009 at 16:18