MADISON, WI (March 17, 2009) – Citing federal jurisdiction under the U.S. Copyright Act of 1976, the Gannett Co., Inc., through The Post-Crescent of Appleton and The Press-Gazette of Green Bay, along with the Wisconsin Newspaper Association (WNA), today filed a “notice of removal” with the U.S. District Court in Madison to shift the legal action brought by the Wisconsin Interscholastic Athletic Association (WIAA) from a Portage County circuit court.
The WNA said today in their bulletin that the removal of the action by Gannett and WNA to the federal court effectively transfers jurisdiction and is based on the fact that U.S. copyright law “completely preempts all state law” for subject matter falling under federal copyright provisions.
Gannett and the WNA said they would file their response to the WIAA complaint next week in federal court.
On March 5, the WIAA filed a lawsuit against The Post-Crescent and Gannett claiming that their "exclusive media ownership rights" to cover Wisconsin high school post season tournament games had been infringed. WIAA said in the suit they had granted "certain broadcast rights" to the WIAA State Network (made up of three Wisconsin television stations) and Fox Sports Net North, and that The Post-Crescent's live Webcast of a high school football game violated the stations' exclusive rights.
The Post-Crescent responded that WIAA's actions were the association's attempt to "assert their control over all depictions" of Wisconsin's high schools' post season tournaments and competitions.
Joining in the suit against Gannett and the newspaper were the three Wisconsin television stations: WKOW-TV of Madison, WAOW-WYOW-TV of Wausau, WXOW-WQOW-TV of La Crescent, as well as Fox Sports Net North of Los Angeles, CA.
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.
In its state circuit court filing, the WIAA asked the Portage County circuit court for a declaration of its “exclusive ownership rights” in high school athletic tournaments and to uphold their claims to the right to grant exclusive production and distribution rights to photographs, writings, recordings, broadcasts or other depictions of these games.
“The rights asserted by WIAA are clearly ‘equivalent’ to the rights of reproduction, performance distribution, or display defined by the Copyright Act,” the removal filing by Gannett and The Post-Crescent says. “Accordingly, removal is proper under federal law since this is a civil action brought in state court over which the federal court has original jurisdiction based on the existence of a substantial federal question.”
"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," NPPA's general counsel Mickey H. Osterreicher said when the WIAA filed their Portage County lawsuit in early March.
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.
The Wisconsin Newspaper Association contributed information to this report
