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June 30, 2009, 8 a.m.

A legal primer: No consistent winner in the turf wars between sports leagues and news organizations

[This is part two of our series on the changing relationships between sports leagues and news organizations. See the whole series here. —Josh]

Before diving any deeper into the growing power of sports leagues over how news organizations do their work, it’s important to trace the legal path that got us to this point. A few landmark cases have played a big role in determining what kinds of influence can be wielded over your local sports section.

In 1997, the NBA unsuccessfully sued Motorola (National Basketball Association v. Motorola, Inc.) for infringing on its exclusive rights to the broadcasts of games by electronically providing customers with in-game updates. The court ultimately found that the statistics of a game are un-copyrightable facts. In other words, nobody can claim ownership to the fact that a LeBron James slam dunk produced two points or that three Ray Allen three-pointers are worth nine points; that information exists entirely in the public realm, available for everyone’s use.

The flap began when Motorola marketed and manufactured a pager called SportsTrax. The device supplied customers with real-time information about NBA games, including the score, who had the ball, and how much time remained in the contest. The service relied on reporters watching the game and keying stats into a computer. The NBA argued the service infringed on the sale of exclusive broadcast rights, which can be copyrighted because creative capital is expended in the broadcast’s production. The transmitted sounds, images, and graphics are a copyrightable expression of the so-called “facts of the game” or “underlying game.” Legally speaking, however, the court said sports events themselved “are not ‘authored’ in any common sense of the word.”

That lined up with a landmark 1991 case (Feist Publications, Inc. v. Rural Telephone Service Co.), in which the Supreme Court held that:

“No one may claim originality as to facts”…This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence…The same is true of all facts — scientific, historical, biographical, and news of the day. “They may not be copyrighted and are part of the public domain available to every person.”

The game’s basic facts fell within the Court’s definition of “unoriginal,” meaning Motorola was not in violation of the league’s copyrightable expression of the games. Another case, in 2007 (C.B.C Distribution and Marketing, Inc., v. Major League Baseball Advanced Media, L.P.), reinforced that ruling by saying stats used in fantasy baseball games were protected by First Amendment principles.

As encouraging as these decisions were to journalists and Internet proponents, in 2004 the U.S. Supreme Court declined to hear an appeal by the Morris media company in a case involving golf (Morris Communications v. PGA Tour). Morris claimed it had a right to publish and sell time-sensitive golf scores from PGA Tour events covered by its reporters. Without comment, the Court upheld a lower court’s ruling that media companies couldn’t post or sell real-time scores to web sites that didn’t purchase the PGA’s licensing agreement. Morris had filed an antitrust claim after the PGA Tour drafted restrictions in 1999 barring media outlets who published real-time scores from covering their events. The 11th U.S. Circuit Court of Appeals in Atlanta sided with the PGA Tour, ruling that the PGA Tour’s real-time scoring system required significant capital, staffing and technology and therefore justified the selling or licensing the information.

APSE, the American Society of Newspaper Editors, and the Reporters Committee for Freedom of the Press all supported Morris’ appeal to the Supreme Court, arguing that the PGA shouldn’t have ownership rights over information disseminated from public events. While the case only sets precedent for 11th Circuit, John Cherwa, APSE’s legal affairs chair, said a lot was lost in the Morris case, which made it clear that appeals to the First Amendment did not always guarantee what journalists considered legitimate news coverage.

“[Morris] went to court in Georgia, in the Deep South — maybe in another area it would’ve turned out differently, but it did turn out against the press,” Cherwa says. “That becomes the cornerstone of all sports credentials created today. Basically it says they can write in whatever they want and we have to follow it or we don’t cover [the event].”

Battles over video rights

Nowhere has the upshot of the Morris decision been more evident than in the APSE’s fight with Major League Baseball and the NFL over digital rights. The battle reached its peak about two years ago when the NFL wrote a clause into its season credentialing agreement for beat reporters that drastically limited the amount of non-game audio and video content the media could obtain at NFL facilities.

The new rule stated that websites couldn’t post more than 45 seconds per day, including news conferences, interviews and practice-field reports. Just before the latest NFL season began last fall, the league agreed to double that amount to 90 seconds per day — but APSE had to fight ridiculously hard to win what amounts to little more than a bone.

“We wanted to stake our claim and say ‘You can’t do that,'” Cherwa says of the fight with the NFL. “There would’ve been an equal fight if they said we could only have 180 seconds.”

APSE had a similar fight with MLB, which currently allows 120 seconds of audio or video per day. During the controversy, APSE advised its members to sign credential agreements under protest. MLB also tried to restrict newspaper’s online photo galleries but Cherwa said APSE and MLB agreed to vague terms that allow a “reasonable amount” of photos to be posted online.

Blogs have also been another battleground between newspapers and athletic administrators. In 2007, the Louisville Courier-Journal’s Brian Bennett blogged live from the University of Louisville’s baseball games in the first two weeks of the College World Series. But during a game against Oklahoma State on June 10, NCAA officials kicked him out of the press box for blogging about the game.

While the NCAA issued several memos outlawing blogging prior to that moment, it never included such restrictions on its credential agreement. Nevertheless, the NCAA claimed that any live representation of the game infringed on its broadcast licensing agreement with ESPN. The incident drew sharp criticism from lawyers and journalists alike. Despite editors’ quickness to call is a First Amendment issue, ultimately the Courier-Journal’s lawyers didn’t pursue litigation. The NCAA, for its part, changed its policy the next season to allow some blogging.

During last year’s NBA season there was also uproar when Dallas Mavericks owner (and blogger) Mark Cuban banned bloggers from the Mavs’ locker room, saying that there weren’t enough credentials to go around. Cuban also said that bloggers from large outlets such as The Dallas Morning News shouldn’t have better access than an independent blogger. This policy came two years after Cuban himself criticized the NFL for limiting newspapers’ ability to cover teams online. (Lately, Cuban has taken to Twittering about subjects like the quality of refereeing in Mavs games, which he called “another way to have fun and mess with the media.”)

Conflicts over high school sports

Some of the most bitter battles over digital rights have taken place on high school athletic fields. The Wisconsin Interscholastic Athletic Association (WIAA) sued Gannett, parent of The Post-Crescent in Appleton, and the Wisconsin Newspaper Association. Alleging that The Post-Crescent streamed video from a high school playoff game in November, the lawsuit filed in December asserts that the WIAA owns rights to 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 games played at their member schools.

WIAA has also restricted newspapers from reselling photos from its games after it awarded a photography firm the exclusive resale rights of photos from its sporting events. Many Wisconsin papers ignored the rule and the WIAA didn’t press the issue. But one state over, the Illinois Press Association sued the Illinois High School Association for restricting photographs of athletic events last year. Before the lawsuit was settled — with both parties agreeing that the IHSA could issue photography credentials but not limit photographer’s access except for safety considerations — some Illinois newspapers shot photographs from the stands. Others boycotted the rule by refusing to shoot the events at all, explaining their editorial decision in notes to readers. (APSE offers advice about how to handle these issues of photo rights here and state-by-state photo policies here.)

In some states there has been talk about newspapers and high school athletic associations sharing content and resources. Many news organizations that once saw themselves as bitter rivals — now facing enormous financial challenges — have been willing to strike content-sharing agreements in recent months.

“We’ll see that become more common, that, newspapers are sharing resources,” Cherwa said. “That seems okay. But are we willing to take the next step and become partners with the people we cover? Time will tell that.”

Photo of Lady Justice by armykat1014 and photo of Mark Cuban by Ed Schipul used under a Creative Commons license.

POSTED     June 30, 2009, 8 a.m.
PART OF A SERIES     Shifting media power in sports
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