By Mickey H. Osterreicher, Esq.
BUFFALO, NY – An email from NPPA member Mark Hertzberg, director of photography for The Journal-Times in in Racine, WI, in early January began a discussion about a growing concern where the Wisconsin Interscholastic Athletic Association (WIAA) was attempting to prohibit newspapers from selling photographs that have been published only online, and video shot by newspapers, and asking papers to pay a $100 licensing fee to cover regional and sectional games in order to be able to sell those photographs. In addition, they wanted to prohibit the sales of all photos from the championship games, and told freelancers hired by newspapers to cover games that they cannot resell their own photos.
More recently, the issue surfaced again in Louisiana when the Louisiana High School Athletic Association (LHSAA) wanted newspapers to agree that only photographs that were actually printed in the newspaper could be sold, a position they quickly reversed when publishers objected and some photographers staged a symbolic walk-out from a sports event.
And now an upcoming round table discussion on March 10 at Northwestern University, conducted by the Illinois Press Photographers Association and led by a liaison between the Illinois High School Athletic Association (IHSA) and the photographers’ group, hopes to further the discussion.
“Newspapers are so ingrained in their historical ability to sell photos, that any attempt to take it away is viewed as a threat to newspapers' traditional role in the community, and I believe that the readers would agree,” NPPA president Tony Overman said.
The problem originated when the WIAA contracted with two private photography companies in the state giving them exclusive rights to sell photographs and video taken at these sporting events. In order to enforce those property rights the WIAA included objectionable and limiting language in their credentialing agreement, a document that must be signed by each newspaper in order to cover the games. What was really interesting at the beginning of the discussion was that the language in the preamble to the rules read: "The Wisconsin Interscholastic Athletic Association, in cooperation with the Wisconsin Newspaper Association, requests newspapers review and comply with WIAA media credential policies for state high school tournaments throughout the year."
Apparently WNA editors missed some of the points in the fine print and, as a courtesy, passed the WIAA credential policy along to member newspapers with the suggestion that they should comply with the credential agreement's terms. The rest of the credentialing agreement read as follows: "Photographs taken with the authoritative use of the WIAA media credential by news-gathering media outlets are for editorial, non-commercial use only. The sale of any photography, digital image files, videotape or film taken at the state tournament is not permitted without written consent of the WIAA. Any photos, images or video taken with WIAA credentials are subject to rights, if any, of all third parties, including the individuals photographed." Some of the operative words are underlined, and go to the heart of the distinction between editorial coverage/use and commercial resale.
At first it appeared that the WIAA was not trying to restrict editorial access or content - only commercial use of the images. Even under this ban the rules state an exception – that being the written consent of the WIAA.
When the WNA realized the implications of this agreement they informed the WIAA that the terms were unacceptable and negotiations began to revise the language.
There were long rounds of discussions between photography directors and picture editors in Wisconsin, who tried to negotiate with WIAA's communications director, Todd Clark. Editors thought they had reached an agreement with Clark allowing them to sell pictures that were online, as well as print images, and video that was under three minutes but they were surprised when they received a negative response from him. Complicating matters was the fact that the two companies who had already signed contracts with the WIAA granting them exclusive rights to sell their images also took this to mean that it gave them exclusive rights to cover the events as well.
They also interpreted their agreement with the WIAA as giving them the sole right to cover events at all tournament levels, not just at state finals. Another problem arose when the WIAA offered to grant media outlets the right to resell images from regional and sectional tournaments if they paid a one hundred dollar annual licensing fee. Aside from the WNA refusing this offer, it apparently only applied to images which were published in the newspaper (and not to any online images that were posted), and the right to resell video images was exclusively banned.
While WIAA argued that it was protecting the rights of the athletes and of the organization itself, the media outlets countered that while there was a long tradition of cooperation between the news organizations and WIAA the press believed that they were providing a valuable community service by offering reprints and video for sale to their audience.
Unfortunately, in the brave new world of the Internet many lines that were once very well defined have now become so blurred as to be almost non-existent. Newspapers are now able to post slideshows of unpublished photographs and to also post video (which was at one time the exclusive domain of television). People can download and capture many, if not all, of these images. Sometimes they pay for them, sometimes they don't. Sometimes the images posted are the property of the poster, sometimes they are not.
All parties agree that they want to maximize profit, cut expenses, and protect their trademark, copyright, property rights, etc. In order to do that most effectively, organizations enter into written contracts. One of the most important elements in a contract is the definition of terms. Those terms must be stated clearly so that there is no ambiguity should a dispute arise. There should also not be other extrinsic documents and agreements that modify the terms set forth in the contract/agreement.
A very telling quote in the Wisconsin controversy came in one of the many eMail exchanges between Wisconsin editors: “We cannot agree to pay a licensing fee because we cannot pay to cover the news.” This statement illustrated the confusion and rancor that was growing between the press and the athletic association. A strict reading of the original WIAA agreement only seeks a fee for the licensing of the resale of images, not as a condition precedent for coverage of the event.
ON JANUARY 29, 2007, a letter went out to WIAA director of communications, Todd Clark, that was signed by the photography editors of six Wisconsin newspapers and supported by the Wisconsin News Photographers Association, the Wisconsin AP Sports Editors, the Associated Press Photo Managers, and the National Press Photographers Association. (The Wisconsin Newspaper Assocition and the Wisconsin Associated Press Managing Editors Association had not yet signed off on the letter because they had not met yet to discuss it. Their meeting was scheduled for a few days later.)
After acknowledging the ongoing discussions and the importance of interscholastic sports coverage, the letter set forth the two points that the signatories were in agreement on with the WIAA: that “state newspapers may publish, and make available for sale, photos and videos of 3 minutes or less, as they accompany our editorial content”; and “in consideration of newspapers’ long and accepted tradition of not paying for access to events and editorial content distribution, state newspapers are exempted from Sectional and Regional licensure.”
A source at one Wisconsin newspaper says that WIAA's negative response to their letter came back "within half an hour."
On February 5,2007, the WIAA responded to all weekly newspapers, television/cable outlets, radio stations, and daily newspapers regarding WIAA Tournament Information with a reminder about “WIAA Tournaments Photos/Property Rights.” The release stated that “the WIAA has had a partnership with Visual Image Photography, Inc. [VIP], over the past several years. VIP is the official photographer of the WIAA State Tournaments. They have the exclusive rights to sell photos taken at the venues of the WIAA State Tournaments by any distribution method. No other entity is allowed to photograph and sell photos from the WIAA Tournament events. In addition, the WIAA maintains the rights to the WIAA Tournament Series (regionals, sectionals). The WIAA provides licensure for entities wishing to photograph and sell photos/images at a cost of $100 per year. Media wishing to sell photographs by any distribution method must be licensed by the WIAA. The WIAA has extended the courtesy to media outlets the opportunity to sell images/photos that appear in the printed version of the publication without licensure. However, any sale of images/photos beyond what is printed in the publication remains prohibited.” The term photograph and sell is underlined because this new definition of terms can be read as two separate conditions or one. So it could be argued that the WIAA is now restricting not only the sale of the photos/images but the access to photograph the event as well.
With regard to video at WIAA Tournaments, the release stated: “The WIAA has a partnership with When We Were Young Productions, Inc. [WWWY], as the official videographer of the WIAA Tournament Series. They have the exclusive rights to air and distribute all tournament series events. Media outlets wishing to record any video account of WIAA tournaments and its distribution must receive clearance from WWWY Productions.” This language is extremely restrictive and permits a third party to exercise prior restraint over a news organization’s ability to cover what is normally considered a public event. It goes far beyond the WIAA concern regarding sales. It would appear that any news organization would have to obtain either permission or actual video from WWWY, which infringes on the journalistic privilege and the ability of that organization to gather and disseminate news.
Rather than reaching an agreement with the WIAA, these new conditions were far more restrictive than the previous terms of the licensing agreement which stated: “Photographs taken with the authoritative use of the WIAA media credential by news-gathering media outlets are for editorial, non-commercial use only. The sale of any photography, digital image files, videotape or film taken at the state tournament is not permitted without written consent of the WIAA.” Under the new terms, if actually allowed to photograph the event only photos published in print could be sold; there could be no publishing on the Web during the regular season; there could be no selling photos published on the Web without a licensing agreement during the tournaments; and there could be no video shot without the consent of WWWY.
Needless to say Wisconsin's editors did not agree to the new WIAA credentialing agreement. There was talk of a boycott of the events or shooting from the stands but ultimately it was decided that the best approach was to inform the public about what the WIAA was proposing. In the meantime a few WNA member papers received “warning” letters from VIP seeking to enforce its exclusive contract with WIAA.
As things started to heat up other newspapers began receiving letters from the WIAA requesting that they remove from their Web site images for sale that had not appeared in the print publication, and to refrain from the sale of images from WIAA Tournament events without WIAA authorization. The WNA and its member papers began getting varying legal opinions and ultimately started issuing directives to its photographers about what to do in the event that they were interfered with, or barred from, covering these events.
A natural consequence of a dispute involving a newspaper is an Editorial (there is good reason for the old saying, “Never pick a fight with people who buy ink by the barrel"). Such Editorials began to appear not only in Wisconsin but in other states as well. The Post-Crescent, in Appleton, WI, wrote, “The WIAA, which serves not only to govern high school sports but to promote them and protect the interests of its student-athletes, shouldn't hinder newspapers from trying to help the public and provide the best coverage of prep sports they can. It isn't acting to the benefit of the people it exists to serve.” Headlines from some other stories read: “Wisconsin High School Athletics, Newspapers, Fight Over Photo Rights” and “News photographers Denied Access to LHSAA's Girls State Tournament."
AS THE STORY unfolded and word spread of the Wisconsin dispute, news of similar disputes surfaced in Wyoming, Iowa, and Louisiana. In Iowa, editors met with their state's athletic governing board (which has contracts with some of the same photo and video companies as WIAA). The Iowa board said they did not intend to restrict newspapers' resales, that their concern was with other commercial studios who wanted to cover games only for the purpose of reselling pictures.
In New Orleans last month at a state girls’ high school basketball tournament newspaper photographers were faced with signing a form stating that “only pictures that appear in ‘the actual physical newspaper’ may be sold.” Instead of consenting, photographers instead chose to leave and not cover the event. This lead to a reversal by the Louisiana High School Athletic Association (LHSAA), permitting photography without any prior restrictions. “We don't want to keep photographers from doing their jobs. They can take all the pictures they want and use them they way they want to use them," said association commissioner Tommy Henry.
“I think the athletic associations are creating an issue by attempting to institute restrictions that sometimes cross the lines of access, including the problems in Louisiana where photographers were prohibited from courtside photography at the state wrestling tournament because of the agreement with a contracted private company ... or the Wisconsin requirement to get permission from the contracted company before being allowed to shoot video for journalistic purposes,” Overman said.
The News-Star in Monroe, LA, also wrote an Editorial: “The LHSAA tried to trample on the First Amendment rights of Louisiana newspapers and their readers by dictating how and what the newspapers could publish, as well as where they could publish it.” “It did not work.” “It should not have worked.” “Our Constitution doesn't allow it.” The Editorial concluded: “The LHSAA must realize how rapidly and how widely the news media has changed – that our loyal readers access News-Star words and images online as well as in the printed newspapers every day. By trying to limit what the newspaper companies offer to their customers online, the LHSAA sought to limit those customers' rights and those customers’ choices.”
That reversal and the ensuing victory Editorial was hailed by others, especially those in Wisconsin. As of this date no photographers in Wisconsin have been asked to sign any agreement while being credentialed, although the credential itself does bear language on the back that states that by accepting the credential the bearer acknowledges that photos taken using it cannot be sold. The photographers also report receiving flyers stating (in bold letters) that photographs taken at the event cannot be sold (although it did not distinguish between print and online photos).
“I am sure that Louisiana and Wisconsin will not be the last states to see this issue pop up. I am pleased to see newspapers working together to find a solution,” said Alicia Wagner Calzada, NPPA’s immediate past president. “It is important that newspapers fight unreasonable credentialing agreements and just as we are seeing more of that, we are also seeing more news organizations putting their foot down. This can only help us in the fight for better access,” she concluded.
In an effort to further the discussion, Rob Dicker, a liaison between the Illinois High School Athletic Association (IHSA) and the Illinois Press Photographers Association, has scheduled a round table discussion to be held at 10:45 a.m. on Saturday, March 10, 2007, at the Illinois Press Photographer's Association Conference Hall located at Northwestern University's McCormick Tribune Center, 1870 Campus Drive, Evanston, IL. Some questions to be discussed: Are you a staff photographer at a paper that sells reprints? Do they sell unpublished work? Does that worry you? Are you concerned about the ethics and legal issues surrounding reprint sales? Are you an event photographer facing the possible loss of revenue if the IHSA signs an exclusive licensing agreement with their “official photographers?”
As NPPA’s president, Overman assures members that the “NPPA will continue to monitor the situation and support those organizations in their efforts to assure the highest of journalistic standards.” Although there appears to be no universal solution to this situation, the NPPA believes that while the disagreement lies between the news organizations and the athletic association, it is the photographers at the events and the public at large who will be the real losers should there not be a favorable conclusion.
Mickey H. Osterreicher, Esq., is general counsel for the NPPA. He is a member of the New York State Bar Association Media Law Committee. A photojournalist for over thirty years in Buffalo, NY, he has been an NPPA member since 1972.