APPLETON, WI (March 5, 2009) – Claiming that their "exclusive media ownership rights" to cover Wisconsin high school post season tournament games have been infringed, the Wisconsin Interscholastic Athletic Association has filed a lawsuit against the Appleton Post-Crescent and Gannett Co. Inc., the paper's owners.
The suit is the result of WIAA trying to assert their control over "all depictions" of Wisconsin's high school's post season tournaments and competitions, the Post-Crescent reports today.
Joining the suit against the newspaper and Gannett are television stations WKOW-TV of Madison, WAOW-WYOW-TV of Wausau, WXOW-WQOW-TV of La Crescent, along with Fox Sports Net North of Los Angeles, CA.
The lawsuit says WIAA had granted "certain broadcast rights" to the WIAA State Network (made up of the three Wisconsin stations) and Fox Sports Net North "for valuable consideration," and that the Post-Crescent's live Webcast of a football game violated the stations' exclusive rights.
The three Wisconsin television stations are owned by Quincy Newspapers Inc., which only owns two newspapers but 12 television stations and two radio stations in 13 states. The newspapers are the New Jersey Herald in Newton, NJ, and the Quincy Herald-Whig in Quincy, IL.
WIAA's suit is asking a Portage County, WI, judge to rule that WIAA has the right "to control the transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description" of high school games.
In response the Post-Crescent says that WIAA's control would go far beyond newspapers to include everyone, parents and the student-athletes themselves, and that coverage of the events are not under WIAA control.
"We are seeking to protect our rights to cover the news in whatever form or with whatever technology we have at our disposal," Post-Crescent executive editor Dan Flannery said in the paper today. "Clearly, I guess we disagree."
WIAA claims that post season tournament games are entertainment, not news events, the Post-Crescent reports, and that their contracts with the schools as a private business gives them exclusive rights to cover the games.
"I am very disappointed to see that the WIAA did not learn anything from the Illinois settlement of this same issue," NPPA's general legal counsel Mickey H. Osterreicher said today after reviewing the lawsuit.
"If WIAA represents local public high schools it is a state actor and thus its actions in limiting coverage are unconstitutional. Analogous to the action in Illinois, the WIAA is a state actor. The overwhelming public character of the WIIA membership is sufficient to confer state action for the application of constitutional protections of a free press and equal protection," Osterreicher said.
"The WIAA has not articulated any public interest which it seeks to protect by means of its regulations on the newspaper's constitutionally protected activities. WIAA's policies and regulations appear to constitute a prior restraint on the newspaper's constitutionally protected news gathering and news distribution activities. Apparently the WIAA has no purpose, aside from promoting its own commercial interest and the commercial interests of those it has granted a license, in limiting newspaper's ability to cover WIAA games which are of 'public interest' whether they are an 'entertainment event' or a 'governmental function.'"
Osterreicher also said that he believes that the preferential treatment of these licensed organizations over those of the newspaper may constitute a violation of the equal protection clause of the Wisconsin Constitution.
"Restrictions on the use of images from these games may also create an unconstitutional prior restraint on the newspaper's constitutionally protected activities," he said.
"I believe that the question of whether the games are protectable under copyright or not is a federal question, and therefore if the parties do not settle the matter quickly I suspect that Gannett and the WNA may seek to remove the case to federal court on the theory that the WIAA is asserting an intellectual property right, which is not a claim within the purview of the Wisconsin Circuit Court," Osterreicher said.
"It is unfortunate that the named television stations have chosen to join in this suit but I believe that it is just a reflection of the difficult economic times facing the news organizations and the blurring of the line between traditional print and electronic broadcast media by their online presence."
Most WIAA members are public schools, the Post-Crescent says, and tournaments are public events. Therefore the association has no right to try to control the news media, WNA executive director Peter Fox told the Appleton daily.
"It [WIAA] has no legal basis to enter into restrictive agreements with private business," Fox said.
WIAA's lawyer said the organization would not comment on the case.
On November 8, the Post-Crescent published a live Webcast of a football playoff game between Appleton North and Stevens Point, home of the WIAA, which apparently triggered the lawsuit.
This isn't the first clash between WIAA and Wisconsin's newspapers. In 2007, an agreement between a Milwaukee-based photography business and the organization surfaced when they tried to restrict newspapers from covering tournament games. The organization wanted newspapers to pay $100 to shoot unlimited photographs at regional and sectional games and the photos could not be resold, used only for "editorial" purposes.
The businesses involved in that dispute were Visual Image Photography Inc. of Cederburg and When We Were Young Productions. Both of those companies have joined with WIAA in the current lawsuit against the Post-Crescent.
