If you pay for cable, you probably don't spend time thinking about which media outlet has the right to broadcast your favorite college's football games.
If, like us, you stopped paying for cable years ago in favor of delayed, free access to television shows online, broadcast rights are an issue every Saturday morning during college football season as you scramble to find a live-stream broadcast to watch your team dominate over a higher-ranked opponent.
The question of media rights, however, is no longer restricted to college and professional football; the Seventh Circuit Court of Appeals ruled last month that high school athletic associations, like National Collegiate Athletic Association (NCAA) conferences, can enter into exclusive contracts to assign Internet streaming rights for high school sporting events.
In 2005, the Wisconsin Interscholastic Athletic Association (WIAA) contracted with American-HiFi, a video production company, to stream its tournament events online. Under this contract, American-HiFi has an exclusive right to stream nearly all WIAA tournament games. If American-HiFi elects not to stream a game, other broadcasters may do so after obtaining permission and paying a fee. Notably, the exclusive broadcast agreement between American-HiFi and WIAA concerns entire game transmission; it does not prohibit media coverage, photography, or interviews before or after games.
Newspapers owned by media giant Gannett decided that the exclusive license agreements violated a supposed First Amendment right to broadcast entire performances, and streamed four WIAA tournament games online without either obtaining consent or paying the fee. In response, WIAA filed a declaratory judgment action asserting its right to grant exclusive licenses. The district court entered summary judgment in favor of WIAA, and the Seventh Circuit Court of Appeals affirmed.
In its opinion, the circuit court noted that, "The media are free under the policy to talk and write about the events to their hearts' content. What they cannot do is to appropriate the entertainment product that WIAA has created without paying for it. WIAA has the right to package and distribute its performance; nothing in the First Amendment confers on the media an affirmative right to broadcast entire performances."
Before you roll your eyes and dismiss this as another boring copyright case; this one has a twist.
The Seventh Circuit claims that this case "has nothing to do with copyright."
So on what grounds did appellate court side with the WIAA? We're not quite sure.
The court only explains that under the Supreme Court's Zacchini v. Scripps-Howard Broadcasting holding, WIAA is entitled to charge a fee in exchange for consent to broadcast, and the First Amendment does not give the Gannett, or any other media outlet, the right to appropriate, without consent or remuneration, WIAA's entertainment product. In other words, WIAA has a right to make money, so they have exclusive rights to broadcast their sporting events.
Critics claim this decision creates a new intellectual property right. What do you think? Did the Seventh Circuit Court of Appeals fumble this opinion? Should the court have analyzed this matter as a copyright case?
- Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc. (FindLaw's Case Law)
- Despite First Amendment Challenge, Seventh Circuit Allows High School Sports Association to Exclusively License Broadcasting Right (Jolt Digest)
- Judge Makes Offside Ruling in Footballers' Copyright Case Against YouTube (FindLaw's Courtside)
- Pacific Quadra casting: New Support For Security Interests In Broadcast Licenses (FindLaw's Library)