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

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.

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)

Blotter: The Right to Take Pictures

Note: this is a cross-post with my NPPA Blog.

The right to take pictures has been in the news so much lately that I feel I need to present it in the form of a police blotter. Please send tips to me at advocacy@nppa.org.

The Washington Post has an interesting piece on ten incidents where photographers were stopped for taking pictures, detained, or told that photography was not allowed in a public place. It accompanies a story talking about the problem that NPPA has been fighting for years- police interfering with the right to make photographs in public.

In other “Right to take pictures” news, a congressman from New York, U.S. Rep. Edolphus “Ed” Towns (NY-10) has submitted a resolution to the House of Representatives, “recognizing that the videotaping or photographing of police engaged in potentially abusive activity in a public place should not be prosecuted in State or Federal courts.” A “resolution” does not have the force of law that a statute does, but it will be nice if in fact Towns can get the House to support the concept that photography of police is protected constitutional activity.

File this under “save the best for last”: Earlier this month, a jury awarded camerawoman Patricia Ballaz $1.732 million in damages in her lawsuit against the city of Los Angeles after she was battered by members of the LAPD during an immigration rights rally in 2007. Her injuries were so severe that she was unable to return to her job.

Elegant Argument for Cameras in the Supreme Court

This week, the broadcast of the Elena Kagan confirmation hearings provided a stark contrast to the dramatic events actually inside the Court on Monday. What came of it is one of the most elegant arguments for cameras in the Supreme Court that I have ever read.

Check out the article here.

Arrest in leak of the video of the killing of photographer Namir Noor-Eldeen

-Note: this is a cross-post with my NPPA Advocacy Blog. Please visit that as well.-
Several months ago, Wikileaks released a horrifying video of the 2007 killing by the U.S. Military, of Reuters photographer Namir Noor-Eldeen and his and driver, Saeed Chmagh, 40.

Earlier this month, the federal government arrested an army intelligence analyst, 22-year-old Bradley Manning, who is suspected of leaking the video. Adding to the drama are reports that Manning also leaked hundreds of thousands of other classified documents, and cables to Wikileaks, and now the Pentagon is searching for the founder of Wikileaks, Julian Assange, fearing that the organization is preparing to release the information. Interestingly, Assange is scheduled to speak on a panel discussion at the Invetigative Reporters and Editors conference this afternoon, the epicenter of journalism that relies on confidential sourcing.

An article in today’s New York Times outlines how the government is taking a hard stand against leaks.

In the midst of a national crisis in the Gulf of Mexico, and corporate misinformation campaigns by BP which are being supported by the federal government’s cooperation in blocking access, all of this is important to photojournalists.

(UPDATE: Assange has canceled his appearance at the IRE conference, according to The Daily Beast)

Media companies saying “No Thanks,” for the hand-outs

One of the dangers of “official” photographers, is when they are used as a replacement for admitting the media.

The media doesn’t like this, but for years, there was not much in the way of response.

Things are changing. More and more, I have seen media companies refusing to run “handout” photos when they are offered as a replacement for media access.

Recently, the media was kept out of a meeting between President Obama and the Dalai Lama. Response was strong.

The Associated Press declined to distribute the handout photo, instead offering the following Photo Advisory:

AP Photo Advisory: The AP will not be distributing an official White House photograph of today’s meeting between President Obama and the Dalai Lama. The AP declines to accept or use handout photos when we feel access would have been possible by the media, either as a group or through a pool photo arrangement.

The New York Times and the Washington Post also stated that they would not publish the hand-out photos.

The impact of a media blackout used to be more significant. But since the Obama White House has it’s own photo distribution system (via a Flikr Photostream) it doesn’t have to rely on the AP, or even newspapers, to get its images across.

There are several good sources for this story:

Associate Press release about the Dalai Lama and Obama meeting.

Washington Times article about the Dalai Lama handout photo.

Columbia Journalism Review article on the handouts trend.

White House Flikr photo stream.

White House News Photographers Association position on handout photos.