Criticism OK, but Olympic symbols protected by law

There is still plenty of doubt among Vancouver-area artists after a meeting Tuesday to discuss how legislation protecting Vancouver 2010 Olympic trademarks could affect art related to the Olympics.

Last year, the federal government passed the Olympic and Paralympics Marks Act which extends intellectual property protection to 58 trademarks, as well as a series of expressions such as "Games 2010," "Winter," "Gold," and "Silver."

Martha Rans, legal director for Artists' Legal Outreach, a non-profit that gives legal advice to artists, said she is concerned the legislation will cast a chill on artists.

"I don't want artists to stop making art because of fears related to potential legal action," she told the CBC Radio cultural affairs show Q on Wednesday.

Artists fear that if they are critical of the Vancouver organizing committee, or the Games, the legislation will be used to shut them down. That was the main fear expressed at the meeting, which was attended by about 35 artists, she said.

"If an artist is pursued and they don't agree with VANOC's view of things and they proceed to some sort of court action … they have to defend themselves and they have a huge issue there in terms of resources," she said, pointing out that artists don't have the deep pockets of a corporation or the organizing committee.

Artists should not be concerned about criticizing VANOC, because their right to criticize using the Olympic expressions and symbols is protected, she said.

"If you can get your work to fall within the critical or the parody, you have a much stronger argument that could be made, particularly vis a vis freedom of expression," Rans said.

Of greater concern is how sponsors might use the act to protect what they see as their rights to these marks, she said. Rans pointed to the legal tussle between VANOC and Right to Play, a charity whose main sponsor is Mitsubishi. 

Right To Play may not be allowed to set up a booth in the athletes' village at the 2010 Vancouver Games as it had done in the past because of objections from official Olympic sponsor General Motors.

Rans also cites the reluctance of media to reproduce work by artist Kimberly Baker, who had created a poster of the Olympic rings — showing a homeless person with a shopping cart and a sleeping bag inside each one.

"I think there are very real questions about the sponsors and the chilling effect that these issues may have on people," she said.

Bill Cooper, a director of corporate rights and management for the 2010 Vancouver Organizing Committee, agrees the act actually protects artists using Olympic trademarks or expressions in criticism.

"Our core mandate is to protect the collective commercial obligations that we have," he told Q.

The words and expressions, laid out in a separate schedule to the act, are not protected in their every day usage, but only where advertisers try to use them to create the illusion of an assocation with the games, Cooper said.

"What they've intended to do is give a court guidance in terms that might be used in combination to build an association," he said. "They were drawn from experience from previous games as to what terminology and marks are typically used in cases where organizations are trying to build an unauthorized association with the Games."

VANOC is more concerned about commercial production of items, such as T-shirts, using the Olympic marks. This creates a dilemma for artists who might want to reproduce their works that might use a mark or expression protected under the act.

"Commercial scale is not defined in the act," said Rans, who has researched the legal issues. " We've gone to great lengths to find case law and have been unable to find a legal definition of what commercial scale is — one or 12 or 50. We don't know if commercial scale would apply to an artist who is working on a voluntary basis and gives the T-shirts away. These are all grey areas."

She urged artists to press the envelope and not be afraid of the legislation.