Lawsuit Tackles Rights to School Sports Webcasts

BlueDollarHigh school association sues newspaper for webcasting a game without permission.

The association that oversees high school sports in Wisconsin is suing the Wisconsin Newspaper Association and one of its papers, the Post-Crescent of Appleton, Wis., in a dispute about who has the right to broadcast high school sports contests online.

The Wisconsin Interscholastic Athletic Association (WIAA) filed its lawsuit in a district court in December.  News of the lawsuit first emerged last month when the Post-Crescent, which is owned by Gannett CO., wrote about the case.

The complaint contends the Post-Crescent produced a live webcast of a high school football playoff game Nov. 8 without the WIAA's permission.

"We're concerned with the WIAA's efforts to commercialize hometown high school sports for its own purposes," Peter Fox, executive director of the Wisconsin Newspaper Association, told the Post-Crescent.  The association represents about 240 daily and weekly newspapers in the state.

Most WIAA members are public schools and athletic tournaments are public events, and as such, the association has no right to control news media, Fox said, adding: "It has no legal basis to enter into restrictive agreements with private business."

The athletic association defended itself March 6 in its legal skirmish over the rights to media coverage of the postseason tournament it runs.

A statement issued by the WIAA said its lawsuit is motivated by principal, not money. The group said it needs to protect its ability to contract with media partners for exclusive coverage and charge "reasonable" fees for online streaming of tournament events.

The WIAA claims it owns the rights to an array of ways that media organizations cover the tournaments, including writing, sounds, and images.

The court filing said the WIAA wants the court to rule it owns any "transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing, or other depiction or description of any game action, information, or commercial used" of athletic events it sponsors.

Newspaper officials say that's too broad and would put restrictions on anyone, including parents and student-athletes at the events.

Eric E. Breisach, an attorney with the law firm Womble, Carlyle Sandridge and Rice PLLC, which counts many school systems as clients, said the law might be on the athletic association's side.

"For decades, owners of athletic events have controlled television and radio broadcast rights, as well as the commercial use of recordings made at the event," Breisach said. "At the high school level, these rights are typically not enforced against parents or legitimate news gathering efforts, including photographs published in newspapers or video highlights telecast on the eleven o'clock news.  Those activities are usually considered ‘fair use' and thus would not constitute infringement."

But webcasting a game amounts to putting on a public performance of that contest, he said-a right that the association claims to hold.

"Putting content on a web page is considered ‘publishing' or performing' the work, which-absent a license from the owner-might constitute copyright infringement, "Breisach said. And though the newspaper might think it's providing a community service, that doesn't necessarily make it legal, he said-even if the game weren't otherwise broadcast online.

"These issues are not unique to Wisconsin," said Breisach. With the growing influence and ease of posting content on the internet, state high school athletic associations are more aggressively trying to perfect and preserve the right to control distribution, he said, citing cost savings as a justification.

For example the Illinois High School Association recently tried to stop news organizations from reselling on the internet photographs originally taken as part of their news-gathering activities.  Repurposing these photos for commercial gain undercut the value of the exclusive rights the association gave to the photographer, Breisach said-a photographer who was providing services for free that used to cost the Illinois association $50,ooo per year.

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