Photo face-off

Newspapers fight high school sports associations in Wisconsin and Louisiana over who has the right to sell pictures online.

From the Spring 2007 issue of The News Media & The Law, page 34.

By Melissa Attias

High school sports arenas in Wisconsin and Louisiana were recently the battlegrounds between newspapers and state high school sports associations over photography rights.

The disputes in both states — which mirror similar controversies elsewhere — may foreshadow future clashes over Internet photography and video rights as reporting technology advances.

Increasingly, state high school athletic associations sell photography or video rights to its games to professional companies that make money off the photos they sell. These contracts give them extra incentive to restrict media organizations whose coverage can compete with the private companies.

Though the media’s increased use of the Web has exacerbated the issue, it is not a new one. Nor is it limited to high school sports, said John Cherwa, sports coordinator for the Tribune Company and legal affairs chair for the Associated Press Sports Editors.

“The whole thing has to do with intellectual property,” Cherwa said. “Sports organizations do not want anyone else profiting from their product.”

High school disputes

On Feb. 26, pool photographers from Louisiana-area newspapers walked out of a girls high school basketball tournament after refusing to sign forms that would limit newspapers’ ability to sell photographs from the game. The Louisiana High School Athletic Association (LHSAA) said only photographs that physically appeared in the paper editions of the newspapers could be sold.

The association’s longtime commissioner, Tommy Henry, said the forms are meant to protect Musemeche Photography, a father-and-son company that has an exclusive contract to sell photos from the competitions. In return, the company contributes $3,000 annually to the association for student scholarships.

But photographers refused to sign the forms because they were presented without warning, said Rod Richardson, managing editor of The Shreveport Times.

“I felt the requirements were very restrictive and went a little too far in saying how we should run our business,” he said.

Henry withdrew the policy as soon as he became aware of the controversy. But in Wisconsin, a similar dispute erupted over who specifically has photography rights to high school state championship games.

After the Wisconsin Interscholastic Athletic Association (WIAA) placed a bulletin detailing its five-year photography policy in a newsletter, newspapers became aware of fine-print restrictions they had overlooked in the past.

In addition, the WIAA sent letters to newspapers asking that they stop putting photos of the championships on their Web sites, said Peter Fox, executive director of the Wisconsin Newspaper Association.

Since the WIAA sold exclusive photography and video rights to two companies, Visual Image Photography in 2001 and When We Were Young Productions in 2005, it insisted only these companies could sell images of the championship games.

Earlier this year, the WIAA and the two photography companies offered Wisconsin newspapers a deal: For $100, newspapers could shoot an unlimited amount of photographs and film at regional and sectional events, but could only use state tournament images for editorial purposes.

The newspapers rejected the proposal.

“The WIAA is overstepping its boundaries and does not understand the boundaries of today’s newspapers and how they affect the public interest,” Fox said.

Published on the Web?

Fox thinks the issue arose because the private image companies are now putting increased pressure on the WIAA and because the public has recently become more conscious of the information available on newspaper Web sites. Recent contributions from the companies to the athletic association may be fueling this pressure, he said.

In the past year, Visual Image Photography paid roughly $3,000 to the WIAA, association spokesman Todd Clark said. Although this is the first year the company has made enough money to contribute to the association, it formerly produced photographs for association publications in return for photography rights. Clark also said the video company contributed approximately $7,000 to the WIAA during the past two years in return for exclusive video rights.

Clark blamed the controversy on the failure of publications to read the organization’s policy but also said the explosion of digital photography has been a factor. Since photos can instantaneously be loaded onto a Web site, newspapers are posting more of their photographs online, according to Clark.

Newspaper officials in Louisiana cited similar changes behind that state’s controversy.

For Carl Redman, executive editor of The Baton Rouge Advocate, there were two issues at hand: The athletic association thought it — not the media — controlled the resale of photographs, and the only photos it considered published were those in the newspaper’s hard copy.

“It is crucial that everyone understands that a photograph posted on our Web site is published,” Redman said.

Money was not the issue for the newspaper, said Redman, who said high school photographs are “not a big money-maker.”

Henry said it is the way the newspapers have posted high school photographs on their Web sites that bothers him.

“I have no problem with The Shreveport Times putting pictures with captions on their Web sites that they could not fit in the newspaper to tell the game’s story,” Henry said. “I do have a problem with photographers posting pictures with little numbers next to them without captions and selling them. That’s not news coverage.”

Redman said this is not how the Advocate posts pictures.

“We never put up our pictures with a little box that says ‘click to buy this photo,'” Redman said. “If the photographs are not included with a story, we might — might — make an online slideshow, but the paper rarely posts more than 10 or 12 photographs from one event.”

David Tomlin, legal counsel for The Associated Press, thinks it is unlikely these controversies will be settled in court.

“This is a business dispute,” Tomlin said. “I do not believe it makes sense to solve in the courtroom because the court does not have the answers. This is about money.”

National restrictions

Restrictions on press coverage of sporting events are not limited to the high school level.

For instance, to obtain credentials for this year’s college football bowl games, reporters had to sign a contract barring news organizations from selling photo reprints and saying they can use photographs of the game only for news coverage and reprints of news pages.

Cherwa said the contract’s restrictions are typical of college and professional sports conferences; what varies is how strictly these contracts are enforced.

“The NFL cares,” Cherwa said. “The NBA, not so much.”

Jim Jenks, president of the Associated Press Sports Editors and sports editor of The Philadelphia Inquirer, said the fact that sports conferences can make journalists sign media credential agreements does not mean they can restrict their photography rights.

“Credentials do not mean that they have any rights over what you shoot,” Jenks said.

In the past 10 years, however, controversies over press access to sporting events have been disputed in U.S. courts.

In 1997, a federal appeals court in New York (2nd Cir.) overturned a lower court ruling that sports score reporting violated the National Basketball Association’s right to control information, saying a company could offer a service that provides special pagers with updates of professional basketball scores.

But a federal appellate court in Atlanta (11th Cir.) ruled in 2004 that the Professional Golfers’ Association can force media companies to pay a licensing fee to sell real-time golf scores, legally backing press restrictions on instantly reporting scores.

Cherwa said these controversies have to do with advancing reporting technology.

“As we start to migrate our material to the Internet, we become a competitor to them,” Cherwa said, referring to sports organizations. “I think many battles to come will be about Internet rights and posting video clips.”

Lasting effects

As for the high school controversies, Wisconsin journalists apparently have not been hampered in their reporting, despite their disagreement with the association.

At the last meeting of the Wisconsin Associated Press Editors Association, the media decided to continue its normal practice of taking and selling photos and video of WIAA events, according to association President Randy Brandt

“As far as I know,” Brandt said, “no one has been forbidden from covering the events thus far.”

In Louisiana, the LHSAA now provides photographers with a flier that prohibits any “non-editorial, commercial, or other unauthorized use” of images from the games without prior approval. Henry said the flier is based off Louisiana State University’s credentials.

Redman has suggested that a group representing Louisiana newspapers and the LHSAA get together to discuss the issue and get a legal opinion.

“We want to make sure we will not get hit with this again on the eve of a major sporting event,” Redman said.

Henry expressed similar wishes. His advice for sports associations?

“Never get in a dispute with people who buy ink by the gallon.”