Seventh Circuit Rules: States May Restrict Broadcasting of Publicly Sponsored Sporting Events

In a long awaited ruling, the Seventh Circuit on Wednesday held that the Wisconsin Interscholastic Athletic Association (WIAA) was within its rights to grant exclusive broadcast rights to a private commercial vendor and to charge news organizations a fee for the right to broadcast games. The court held that such arrangements do not run afoul of the First Amendment.

Addressing only the issue of the broadcasting of the entire event, the court held that a sporting event was a “performance” and the right to broadcast an event in it’s entirety is a proprietary right that a governmental entity may exercise. The case, WIAA v. Gannett began when The Appleton Post-Crescent, a Gannett newspaper, broadcasted several state championship football games online in their entirety, believing that it was within their First Amendment right to do so. The WIAA sued.

The court first rejected the notion that this case was a copyright case and then proceeded to make intellectual property analogies to the sporting events, repeatedly calling the sporting events “performances,” (performances are protected by copyright) and comparing sporting events to concerts, plays and patents, all of which have protectable intellectual property elements. No court has ever held that a sporting event is a copyrightable performance, and this court did not either. A sporting event is not a work of authorship like a concert or a play. While the court fell short of explicitly holding that a sporting event has intellectual property rights, it basically upheld the assertion of intellectual-property-like rights by the WIAA (while insisting that no intellectual property rights were involved). The underlying basis for the court’s holding was the Supreme Court case of Zacchini v. Scripps-Howard, which held that a television station misappropriated the property of a human cannonball performer by broadcasting the performance in its entirety.

A bright spot in the ruling is that the Seventh Circuit rejected the lower court’s finding that sports reporting deserves less First Amendment protection than political reporting, and held that “[t]here is no basis for a rule that makes the press’s right to coverage depend on the purported value of the object of their coverage.” This is a win for the First Amendment.

Importantly, the ruling is limited to the single issue of whether or not the media has a First Amendment right to broadcast an entire event sponsored by a state actor. But the reasoning is broad enough to be interpreted to support a multitude of restrictions. For example, within the restrictions imposed by the WIAA under the exclusive broadcast agreement, news organizations don’t have a right to “live blog” the events. The court took no issue with that aspect of the exclusive agreement, leaving the live blog restrictions valid.

The court specifically didn’t address issues in the conflict related to still photography, such reprint sale restrictions, because of the issues presented to the court by the parties.

I won’t be surprised if this case to be followed by further restrictions on coverage of government events, and I predict that cities and sports associations alike will interpret this ruling to mean that a city can sponsor a public event and then restrict who may broadcast the event. This ruling could extend to restrictions on broadcasting parades, marathons, and city-sponsored festivals. Several years ago a Los Angeles District Court ruled that the city could not grant exclusive rights to an “official” television station.

The result is a disappointment to the NPPA, which joined several other news organizations in filing an amicus brief in support of the newspaper  last year.

The entire Seventh Circuit ruling can be found here: WIAA v. Gannett Seventh Circuit Opinion, No. 10-2627

An extensive legal article that I wrote on the issue can be found here:

An earlier NPPA article on the conflict can be found here.

Photojournalism Ethics in the Bin Laden Story

Great piece on Nppa.org about ethical issues related to photography this week as the bin Laden story evolves. Big decisions about gruesome images and staged photo ops.

Read about it here:

http://www.nppa.org/news_and_events/news/2011/05/binladen.html

A Law Favoring Photographers

I have been following an exciting bill in the Connecticut legislature that for explicitly takes steps to protect photographers rights to make pictures.

In the face of recent efforts by other states to arrest photographers and charge them with violating wiretapping laws Connecticut’s S.B. No. 1206 is refreshing.

Contrary to some reports, the bill does not give photographers the right to take pictures in public- that right already exists. What the bill does is give photographers a right to sue police who interfere with their right to photograph. In many cases, you can only bring a lawsuit if the suit is authorized. A violation of a civil right is generally an appropriate grounds for suit, and in fact many photographers across the country have received settlements from police departments after being arrested unjustly. However, having an explicit cause of action will make it easier for photographers to bring suit.

In my opinion, it is not the possibility of a lawsuit that would make this bill favorable. Sure it is nice to get something for your trouble. But what matters here is the pressure that this would put on police departments to make sure that their officers respect the First Amendment and leave photographers alone.

The bill is short enough that I can post the entire version here:

Any peace officer, as defined in section 53a-3 of the general statutes, who interferes with a person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such officer’s duties shall be liable to such person in an action at law, suit in equity or other proper proceeding for redress, provided such person, while taking such image, did not obstruct or hinder any peace officer in the performance of such officer’s duties.

According to the Hartford Courant an amendment has been added that exempts officers “if the officer had a reasonable belief it would interfere with an investigation, violate the privacy of a victim or impact the public’s safety.” I’m hoping to get a copy of the amended text- it is not currently posted on the General Assembly website. An amendment like this could take away the teeth of the law or even make things worse if poorly written.

Tuesday Time Killer

If your looking for some time to kill you might find this pissing war between a Boston TV station and some local street photographers – well, I won’t call it entertaining, but it is almost interesting.

Here is the original story by WBZ in Boston:

http://boston.cbslocal.com/2011/04/15/downtown-crossing-street-photographers-crossing-the-line/

And here is a response by one of the photographers in question:

http://thephotorecession.webs.com/

The photographs in the blog are not great, but they seem to be attempts to mimmick good street photography. The photographers look a little like they don’t know what they are doing, and I’m guessing they go after their subjects in that way because they are still learning how to shoot. People apparently are annoyed, but I am annoyed when people approach me on the street passing out leaflets or screaming political stuff or bible verses – the fact is that when you are in public people do annoying things.

The TV station seemed to find it interesting that legs were used in the photos. I don’t know what is in the mind of these photographers, but I do know that in my mind, legs make great graphic elements. In fact every photographer I know has taken photos using legs as a framing device or as a graphic element in a photo.

I found it almost laughable, and certainly hypocritical, that the street photographers wanted the TV station to stop videotaping them.

Bottom Line Regarding the TV Station: The TV station ran a story that is not a story; these are amateurs; legs make good graphic elements in photos; I have seen no evidence that they have done anything wrong and the tv station showed them doing nothing wrong. Stories like this make it harder for me to do my job as a photographer.

Bottom Line Regarding the Photographers: Okay, you have a right to take pictures in public. But seriously, so does the TV station. Also, if you want to be a better photographer, you need to learn to relate to your subjects. Find ways to shoot that don’t make your subjects so uncomfortable and you will see how drastically your images improve. Pick a scene and stick with it for a while. If you have confidence in your photography, your subjects will have confidence in you. Darting in and out of pedestrian traffic like a squirrel, it seems like you want to photograph people, but you are afraid of them. It’s very hard to take good pictures of people when you act like you are afraid of them.

Cameras and Federal Courts

I have for you today some long overdue commentary on last year’s case of  Hollingsworth v. Perry,  130 S. Ct. 705 (2010), the ruling by the Supreme Court of the United States regarding cameras in federal courts. As the Court blocked an attempt by a federal court in California to broadcast the trial to other courthouses throughout the country, it was seen as a blow to the efforts to bring cameras into federal courts. It was indeed a loss, but there were many positive elements to it.

First, the Court explicitly said that it was not ruling on the issue of cameras in the courtroom, rather the ruling was limited to the fact that the comment period for changing the local rules was not long enough (thus avoiding the constitutional question). This means it lives to fight another day.

Second, the decision was 5 to 4, which means that 4 of the justices would have allowed it to proceed, and if only one of the justices in the majority truly voted based on the rule-making violation, we are in good shape.

Third, I noticed something very interesting, and I wonder if anyone else has picked up on it. The Court explicitly and implicitly approved of, the presence of the audio-visual equipment itself in the courtroom when it stated, “[w]e therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses.” Hollingsworth v. Perry, 130 S. Ct. 705, 709 (2010).

In fact, the Court cited the existing rules of the Ninth Circuit, (pre-experiment) which allow the “Electronic transmittal of courtroom proceedings and presentation of evidence within the confines of the  courthouse” Id at 710-711.

The majority also discusses approvingly the limited broadcast of the Oklahoma City Bombing case, without mention of the impact of the cameras in the actual courtroom, as well as the statute: 42 USCS § 10608, which opens the door to closed-circuit viewing of criminal trials. Of course closed- circuit viewing of trials cannot occur without a video camera.

In the temporary stay that it issued two days earlier, the Court explicitly referred to transmissions within the same courthouse when it stayed the broadcast “except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.” Hollingsworth v. Perry, 175 L. Ed. 2d 878 (2010).

This tells us that the issue for the Supreme Court is no longer the presence of the technology as it was 45 years ago in Estes v. Texas. It is the impact of what will happen outside the courtroom. The great thing about limiting the issue to the impact of the broadcast is that there is little teeth in that argument. The Court has been loath to restrict the publication of truthful information obtained in the courthouse, and has outright rejected many efforts to limit publication of courthouse records and testimony, even when extremely sensitive facts were at stake.

Mexico: Photographer murdered, news organizations set reporting guidelines

A photojournalist for La Prensa, in Monclova was kidnapped and murdered in Monterrey last week, according to the Committee to Protect Journalists. The organization reports that Luis Emanuel Ruiz Carrillo was abducted on Thursday night along with two others, and found dead with a gunshot wound to the head on Friday.

As the world is focused on the uprisings in the Arab World, let’s not forget that one of the most dangerous places for journalists is next door, for some of us, mere hours away. Our brave brethren in Mexico deserve our respect and support.

According to the Associated Press, some of Mexico’s largest news outlets recently agreed to a set of drug-war reporting guidelines, agreeing to ignore propaganda messages from drug gangs, which are sometimes left near the bodies of victims. In my opinion, the U.S. media should follow suit.

 

Texas Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in Support

One of the things that I have been working on since finishing law school is supporting the effort to get Anti-SLAPP legislation passed in Texas.

On Monday the Texas House Committee on Judiciary & Civil Jurisprudence held a hearing on The Citizen Participation Act, a law designed to protect Texans from frivolous lawsuits that target their First Amendment rights. The Citizen Participation Act is a bi-partisan effort at aimed at supporting the rights of all Texans affected by frivolous SLAPP suits.

Every Texan, from a rural housewife, to an Austin taxicab driver, to the Better Business Bureau, is a potential target of a SLAPP suit. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits, called Strategic Lawsuits Against Public Participation or “SLAPP” suits. Twenty-seven states and D.C. have laws similar to the Texas Citizen Participation Act.

The Act is comprised of House Bill 2973, sponsored by Chairman Todd Hunter, R-Corpus Christi, and Senate Bill 1565, co-sponsored by Sen. Rodney Ellis, D-Houston and Sen. Kevin Eltife, R-Tyler.

Author Carla Main told the committee that after she wrote a book about eminent domain, a real estate developer filed half a dozen lawsuits, naming her, her publisher, the person who wrote a blurb on the back of the book and a Texas newspaper that wrote a review of the book as defendants. By including the newspaper, The Galveston County Daily News, in the suit, the developer prevented Main from removing the case to Federal Court “where we could have moved to dismiss the case immediately.”

The bill “creates a mechanism to get rid of meritless lawsuits at the outset of the proceeding and it provides for a means to help alleviate some of the burden on our court system,” said Laura Prather, a First Amendment attorney from Austin.

Shane Fitzgerald, Editor of the Corpus Christi Caller-Times told the committee how just last week the newspaper was threatened with a lawsuit for publishing a photo taken on a public beach during Spring Break. Refineries and other industries have threatened to sue newspapers over the publication of public records and safety reports from state agencies. Fitzgerald stated that the paper is threatened with such lawsuits several times a month. The effect of these suits is increased costs to the newspaper and fewer resources available for reporting.

Also testifying was Janet Ahmad, of San Antonio, and the president of Home Owners for Better Building. Ahmad shared details of how she was sued for racketeering by KB homes because she organized protests of the builder.

Iowa Law Would Criminalize Publishing Farm Exposes

Author’s Note: This is a cross- post from my NPPA Advocacy blog.

Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowa’s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.

Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person. . . [p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is  a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.

To give some perspective to the blatant unconstitutionality of this bill consider this – the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).

The government can’t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.

Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.

The NPPA has contacted lawmakers in Iowa regarding the bill.

Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governor’s desk.

From HF589:

Sec. 9.1(a)(2) makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the animal facility” which was taken without permission of the owner.

Sec. 14.1.b makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the crop operation which was” taken without permission of the owner.

The State of the Union Live Web Feed- Are you listening Seventh Circuit?

The New York Times is broadcasting the State of the Union on the front page of its website as I write this. It is a lovely thing to watch, and it is a clear example of how newspapers have changed- in what they can do and how they can deliver the news.

If the Wisconsin Interscholastic Athletic Association (WIAA) was in charge of the State of the Union, the New York Times would not be web-casting the State of the Union, in it’s entirety. Instead they would be limited to two minutes worth of highlight footage, with no live blogging allowed. Sound absurd? That is exactly what WIAA claims it can do with its high school championship games. A federal judge agreed with them and the case is now under appeal. WIAA is a state actor, and if you say that WIAA can restrict coverage of its events, where is the line drawn?

Can the Media be Restricted from Broadcasting High School Athletic Events in their entirety: Oral Arguments in the Seventh Circuit.

There were oral arguments on Friday in the United States Court of Appeals for the Seventh Circuit in the WIAA v. Gannett case. You may remember this case originated a couple of years ago when a Wisconsin newspaper webcast several high school football tournaments against the wishes of the tournament organizers, the Wisconsin Interscholastic Athletic Association. The WIAA sued, initially in state court, seeking a declaration that it had broad rights to own the descriptions and depictions of the games. The case was moved to federal court and the complaint was changed to involve fewer claims.

Currently the primary issue involves whether or not the WIAA can contract with a private company to exclusively license the rights to broadcast the entire game (beyond just highlights). WIAA is a “state actor” which means that in effect, they are like the government, and they cannot restrict speech any more than a city or state government could.

A panel of three judges began by peppering the newspaper’s attorney, Robert Dreps, with hypothetical questions about whether or not a school could restrict coverage related to school plays, or operas, which have copyright protections. Dreps explained how previous courts have ruled that there are no copyright protections in athletic competitions. The judges also raised questions about whether or not the case should ever have been moved to federal court. At one point one of the judges compared the broadcast of the games to a broadcast of the oral arguments themselves. In addition, the issue of whether a ruling in favor of the newspapers would affect broadcast agreements in college basketball games was raised.

These issues are not simple, and because of that, the debate is fascinating. If you have time, it lasts less than an hour. At play are cross-section of many issues, including First Amendment, copyright, and internet law. News organizations all over the country should be paying attention to this case and its outcome.

A recording of the oral arguments can be heard here and there is an article about the original case here.

(editor’s note: this is a cross-post with my NPPA Advocacy blog)