Portions of this column were originally written for the April 2008 edition of News Photographer Magazine.
Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.
The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.
April 2008, Volume 67
By Mark Loundy
"A place belongs forever to whoever claims it hardest, remembers it most obsessively, wrenches it from itself, shapes it, renders it, loves it so radically that he remakes it in his own image."
No news source should be able to dictate what a news organization can publish or broadcast from a news story. But, increasingly, that is exactly what is happening. Most recently Major League Baseball (MLB) issued rules restricting news organizations from transmitting or displaying more than seven images from any one game. They also wanted to limit online photo galleries to no more than 72 hours unless accompanied by a written article.
The Illinois High School Association (IHSA) also has its rules. The group required news organizations to agree not to sell prints from game coverage — something that most newspapers have done routinely for many years. The rules were prompted by an agreement the IHSA had signed with an event-photography company granting it exclusive rights to sell prints from IHSA events.
After negotiations with industry groups, MLB increased the daily online image limit to 15, but the time limit remains. The IHSA has suspended their rules, but lawsuits between the IHSA and the Illinois Press Association remain active. Additionally, the Illinois State Senate has introduced a bill that would forbid the IHSA from imposing usage restrictions on news media organizations.
These First Amendment issues run smack-dab into property rights and the ability of an event owner to award exclusive rights to their product. MLB, other sports organizations and groups like the Motion Picture Academy have a perfect right to say who and who cannot disseminate their product and in what medium. But groups like the IHSA, although private, are, according to NPPA attorney Mickey Osterreicher, so-called "state actors." "In other words," says Osterreicher, "they are acting as if they have a governmental function and as such are subject to both state and federal free speech/press constitutional constraints."
But newspapers are not without limits. "I raised this issue and heard that a number of papers were sending their photographers to high school games with instructions to shoot at least one frame of every player," said Osterreicher. "Then the papers were dumping the whole take onto their website and advertising the photos for sale. If this is true or widespread it would undercut our whole argument."
While there is no question that the First Amendment protects coverage of spot-news events in public places, it is also clear that private events may be legally controlled by their organizers. Organizers may say who may or may not attend. They may also require that attendees agree to certain conditions.
Journalists are equally free to decline to agree and simply stay away.
Since this was originally written, the The Illinois High School Association and the Illinois Press Association have settled their lawsuit. The IHSA has removed all usage restrictions from its rules.
Major League baseball has also further relaxed its rules for still images but continues to restrict newspaper use of video.
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