The Post-Crescent newspaper of Appleton carried a state high school football playoff game live on its Web site last November.
That decision made the paper and the Wisconsin Newspaper Association (WNA) the target of a lawsuit by the Wisconsin Interscholastic Athletic Association (WIAA), which maintains that it owns the rights to the online footage because it's the sponsor of the football playoffs and the association needs to be able to generate the appropriate revenue.
The lawsuit is scheduled to go to trial Feb. 8, 2010, and could determine the broader question nationwide of the ownership, state-by-state, of high school game rights online.
The WIAA is looking for a ruling about its role and rights and isn't interested in monetary damages. The Association had previously sued for ownership rights for writing, photography, video and any Internet-related form of live blogging when the suit was originally filed. Now, the WIAA is only looking for online rights and the case will be heard in federal court.
Dan Flannery, executive editor of the Post-Crescent, a Gannett paper, said news organizations should be able to cover events with whatever technologies are available.
“We did four games during the playoffs,” Flannery said. “The November 8 game was the one focused on in the suit, but we did three before that. We contacted the host schools and asked for space in the pressbox and setup with our video camera and had one or two of our writers doing play-by-play as the game happened. It was pretty clear what we were doing. There was nobody else there.
“We also got turned down on a couple of occasions too as did other Gannett papers in our area. We asked for permission to do that at some games and were told no (by the host school). So we didn't do them. On a couple of occasions, I think this happened in Oshkosh, which is about 20 miles to our south, they turned the camera to the scoreboard and let the camera run like that for the duration of the game and ran a crawler at the bottom that WIAA rules didn't allow us to do the game.”
The Associated Press has said it will financially support Gannett and the WNA if the case makes it to trial.
Todd Clark, the WIAA's director of communications, said that when the Post-Crescent and other Gannett papers were involved in live-streaming playoff contests, “which is under exclusive arrangements with our videographer, cease and desist letters were sent to the papers. Basically, we were sent a letter threatening a lawsuit if we didn't change our policy. That was the start of it.
“What the threat maintains and what the newspaper association in Wisconsin claims is that the WIAA does not have authority to conduct its championships and sign exclusive arrangements for those championships that they own, sponsor and carry out,” Clark said. “We are a private entity. We are not state governed. We do not get any state tax money directly. But again, we are made up of a majority of public schools and they're trying to make that connection. We do have a right to be able to fund our tournament.”
Flannery said he couldn't remember if the paper had talked to the WIAA ahead of time before doing the game.
“We contacted the host schools. If they said, 'no we aren't going to allow you,' then that's the end of the argument for us,” he said, adding that the suit is about playoff games. “We did several regular season games. They don't much care about the regular season.”
Flannery said his paper's contention on being able to do the games is that “it's local news. They're public schools, with public tax dollars and public facilities. It's our belief it's not their jurisdiction to tell us how to operate our business.”
The WIAA strongly disagrees.
“We are talking broadcast rights,” Clark said. “We are not preventing anyone from reporting on it. We allow up to two minutes of video after the contest to put on your web site. We're talking about live streaming and taking full games and putting it on the internet. That falls into a live broadcast which radio and TV have been paying rights fees for years.
“Arguments can be made all over the place. A couple of years down the line you'll be able to watch a live stream over your television set. What's the difference in a broadcast on a cable cast or an internet stream. We choose to say it's nothing. It's just the delivery method that's different. We charge the same thing for a live cable cast as we would for a live over the air cast. It's just the delivery platform we're talking about. We think if you go do a live video of a game, that's a broadcast.”
The association's lawsuit could prove to be a test case for the relationships of other athletic associations and newspaper groups across the country on this matter.
"It varies all over the board. Each state has different media policies and different levels of relationships they have with their broadcast partners, with videographers and those types of things," Clark said.
