ABA Panel, Who Owns The News?

Last Friday I paid a visit to the ABA Forum on Communications Law's 11th Annual Conference in La Quinta, California. The conference had an incredible roster of speakers (brochure; PDF), but I went out just for the panel called "Who Owns The News? Attempts by sports organizations and entertainers to control coverage." I got there by a circuitous and eminently loosely joined route: Jeff Jarvis was initially slotted to talk about the impact of ubiquitous networked technologies and citizens' media on efforts to control news coverage. Jeff had to bow out for some reason, but he referred attorney and moderator Barbara Wall to JD Lasica, who also couldn't make it, but suggested Barbara get in touch with me. I spoke with Barbara about a week before the event, and learned that though she'd been able to line up plenty of lawyers to add their $.02 to the panel, she was hoping to find a nonlawyer expert on citizens' media issues to add his or her perspective to the mix. I put Barbara in touch with Dan Gillmor, who graciously rejiggered his schedule so he could attend. It's a rare thing when a panel at an ABA conference comes together with the aid of three of my respected friends and long-time Bag and Baggage blogrollees. What's more, I've worked as appellate counsel with one of the other panelists, Marty Singer. With all these planetary forces aligning, I clearly needed to go. Barbara also wanted me to take a few moments during the presentation to talk about blogging from D: All Things Digital a few years ago, which I was happy to do.

In addition to Barbara, Dan, and Marty, the panel was comprised of George Gabel, who has challenged restrictions on reporters at PGA and other professional sports events; Dale Cohen, senior counsel of the Chicago Tribune, who has negotiated terms with Major League Baseball for journalists; David Quinto, who represents the Academy of Motion Picture Arts and Sciences; and Debbie Spander, Vice President of Business and Legal Affairs for Comedy Central/MTV Networks, and a Board member of the Sports Lawyers Association.

The panel was enlightening for me, as I don't practice media law per se but it's becoming clear that if your focus is technology law, media related issues are increasingly part of the package. (See, for example, CNN Presents: Undercover in the Secret State, a fascinating look at how cell phones and small digital cameras are used to thwart media and communications controls imposed by North Korea's totalitarian government. Also much in the news over the last year: Apple v. Does.) So, it was quite interesting to hear George Gabel describe his run-ins on behalf of clients with the PGA, NFL, and Southeastern Conference, all of which have conditioned press credentials on restricted use of logos and trademarks, and event photos and video. Though not mentioned by the panel, I found this related discussion while looking up panelist Dale Cohen, and it sets the stage quite well: Who owns the news: The perils of sports credentialing. Mr. Gabel pointed out an irony of the logo/mark restrictions: namely, the reason the public is familiar with a sports organization's logos and marks is because they have been appeared in the media. Debbie Spander mentioned that sports organizations are concerned about, and media outlets generally agree to honor, the "sports news windows" — i.e., no video is broadcast by a competing network until the event is off the air. She also said the cost of licensing clips runs roughly $5,000 - $7,000 per minute. New means of distribution (e.g., wireless via cell phones) inevitably trigger a slew of new agreements and associated fees. Dale Cohen was involved in an early case (1996) concerning sports news on cellular networks.

In negotiating with the Southeastern Conference, Mr. Gabel was successfully able to invoke the 1st Amendment since publicly funded universities were involved. In combating PGA credentialing restrictions concerning the Masters golf tournament, the principal argument urged was antitrust — i.e., the PGA had a monopoly in championship level golf, and was using the monopoly to control the market in real time scores. Both the district court and 11th Circuit rejected this theory. (More on this from the Sports Law Blog: 01/07/04; 04/05/04.)

On the entertainment side, panelist David Quinto talked about media and other restrictions related to the Oscars. They're similar in nature to the sports restrictions: the media is prevented from using screen grabs, or video while the show is in progress. Mr. Quinto said 1,600 people were credentialed to be within the security perimeter at last year's show. He said the Academy doesn't try to control the content of the reporting, but intstead the timing and volume of the clips used. The Academy wants clips from the show to be used only to report about the show, and not for other purposes.

(About all I could think of as Mr. Quinto was saying this was his client might be in for a surprise this year regarding when, where, and how clips are used — given that the host is Jon Stewart, someone whose fans are accustomed to making somewhat more expanded use of his work.)

Marty Singer described how it is now commonplace for celebrities to impose contractual terms on the content of television appearances and press interviews of all kinds. These include restrictions on what can be asked and used. He told a story about an agreement struck by one of his celebrity clients, who was asked to attend a friend's wedding as a guest. The celebrity had the couple agree their guest owned the copyright to all the wedding photos and video, in order to control the use of the images.

Dan Gillmor summed up the other panelists' comments as disheartening and ultimately futile. When everyone can commit an act of journalism, restrictions on the professional media will be circumvented by ordinary people with commonplace technology. Dan mentioned he'd been taking cell phone pictures of the audience during the talk, and described the ease of posting them. (I was snapping away as well, though not terribly effectively.) He referred to how the Giants' baseball park in San Francisco is blanketed in WiFi; blogging from the stands is quite common. We talked about how attendees (including me) with blogs at the first D: All Things Digital reported from the conference in an unrestricted manner, and while Dan's press credential conditions prevented him from doing the same, he could (and did) link to the other coverage. I was also reminded of the theme for this year's PC Forum: "Erosion of Power: Users in Charge."

The panel ran out of time just as David Quinto was saying it is "illegal" to link to infringing material. They needed a bit more time so Barbara could have had him expand on this, I'm not sure if he was positing an MGM v. Grokster-type liability or something else. (Whatever he had in mind, it was giving Dan Gillmor a bad case of the eyerolls.)

All in all, I was impressed and glad the ABA was paying attention to these issues, and am happy to have the opportunity to commit yet another little act of journalism by blogging the fact.

[Technorati tags: ABA; Communications Law; Media Law; Copyright; Intellectual Property; Journalism]