With more and more media now online, sports coverage is becoming increasingly complicated with restrictive credentialing provisions at all levels of sports. As journalists, bloggers, and others who write about sports are finding out, access to events is no routine matter.
Professional and college sports have placed limits on who may hold and use press credentials. In essence, sports leagues create barriers to entry in exchange for certain promises to relinquish legal rights. At the same time, leagues are forcing promotion of teams through such requirements as photographers having to wear certain clothing ostensibly for identification purposes but which often has sponsor logos.
First Amendment rules essentially don’t apply. Instead the leagues are often asking those who cover them to agree to give up valid copyrights of their own products in exchange for covering an event, said attorney Kevin Goldberg of the Arlington, Virginia firm of Fletcher, Heald & Hildreth, PLC. He specializes in First Amendment, copyright, and trademark issues related to newspaper and Internet publishing.
Copyright Law Applies to an Original Work Fixed in a Tangible Medium
No First Amendment right exists to have access to a stadium or other event venue, Goldberg pointed out. In addition, the actual playing of a football, baseball, or basketball game is not copyrighted because it is an unscripted event happening in real time, he said.
Rather, the copyright does not occur until someone captures an image or sound by taking a photograph or audio or video tape. “The copyright is owned by the person who does that, not by the league,” Goldberg told a program on sports credentialing September 16 at the National Press Club in Washington.
But in recent years Major League Baseball, for one, has imposed limits on online content from the coverage of games. The provisions reflect another clash between the growing digital coverage of sports and independent news organizations and Web sites. At the college level, news and sports publishers expressed their dismay to the Southeastern Conference commissioner over restrictions on covering SEC events.
Issue of Alleged Professional Sports Copyright Infringement in NBA v. Motorola Case
In another area, statistics and other written materials that come from games are not considered original works and no copyright applies, Goldberg said. This is the result of a 1996 case, NBA v. Motorola, Inc., in which Sports Team Analysis and Tracking Systems, Inc., known as Stats, Inc., hired people to relay information from National Basketball Association games for gambling and fantasy sports purposes. They used portable Motorola electronic pagers to send updates from games in progress. The NBA claimed this action violated its right to publicity and its copyrights.
The NBA prevailed before the U.S. District Court for the Southern District of New York. However, Motorola won on appeal before the Second Circuit Court of Appeals, which affirmed that no underlying script exists in a game and that the information at issue was public and did not involve misappropriation of any broadcast video or audio or the interception of NBA data.
MLB and the National Football League have since been rebuked in areas involving fantasy sports in which both claimed that fantasy sports purveyors could not use factual news-related information about players, Goldberg told the Press Club forum. The leagues have asked those who cover games, in effect, to contract those rights away, he said.
Sports Leagues Insisting on Having Copyright Ownership to Photos, Video Taken at Games
Leagues are maintaining that they own the copyright to photographs and video that someone else took at games because these are league events. A league will grant a license to cover a game and take photos and video with the stipulation that is done under the league’s terms, Goldberg said. But the only use can be for news or editorial purposes.
The NFL prohibition against commercial reproduction arose after the Indianapolis Colts won the Super Bowl, when the Indianapolis Star featured quarterback Peyton Manning on its front page, Goldberg noted. The newspaper placed an enlarged reproduction of the front page outside its office building. It also put a copy of that front page with Manning’s picture on tee shirts which it then put on sale. The NFL said this action was an unauthorized reproduction despite it being the newspaper’s photograph and its own front page, he said. The league insisted the paper could not sell and make money off of the tee shirt.
The paper agreed not to sell the shirt at above cost and was allowed to primarily give the shirt away without charge in the local community. The NFL has also tried to prohibit free reprints to the public.
Some see a certain irony here in that while journalists and others battle to protect their own proprietary rights, they protest when colleges and other sports entities defend their right to control access to their product. Others think leagues are justified in trying to control sports images to ensure an image is not used in advertising.
If conditions are unsuitable, media have an option not to cover an event, although choosing to do that can pose its own difficulties, Goldberg said. Also, he emphasized, the press should oppose league requirements that any audio or video used should link back to the league site as a promotion, making a publication appear to be a sponsor.
The American Society of News Editors and other news organizations are looking at seeking federal law changes such as amending the Internal Revenue Code to require access to events if stadiums receive public funding. NFL and MLB antitrust exemptions, they contend, can’t curtail First Amendment protections on providing information.
John Seidenberg - John Seidenberg has worked on newspapers, newsletters, radio news, and produced specialized news publications as well as freelance ...
