By Kathy Kirby, Wiley Rein LLP

In recent weeks, RTNDA has been working with other media organizations to have the Southesast Conference (SEC) revise the restrictive new credentials package issued to reporters seeking to cover SEC sports in 2009-10.  RTNDA sent a letter to Commissioner Mike Slive on August 21, and we have also engaged in telephone discussions with SEC representatives. 

The SEC has now issued revised regulations which—in response to our stated objections—are less restrictive, particularly as they concern non-game action video, pre-game, post-game or other highlight broadcast programming, and news sharing.  That said, the credentials still contain restrictions that RTNDA members likely will find objectionable, particularly the limitations on online use of video taken by stations themselves at SEC events.

The SEC certainly is not alone in having issued terms and conditions that would inhibit the ability of journalists to bring their stories to the fans in local communities.  We have now seen credentials issued by the Big 10, Pac 10 and Big 12, as well as individual schools in those conferences, that contain provisions identical or similar to those issued by the SEC, and which mirror those of professional leagues or teams.  Generally speaking, leagues are attempting to create a contract with journalists who want access to the sidelines, or the press box, or whatever the appropriate vantage point may be, in the form of the signed credential.  As with any other contract, the credentials package typically favors the drafter, and you should be wary of signing without careful review.   

While RTNDA will continue its efforts in this area, ultimately, it is up to each newsroom to decide whether it will accept a restrictive credential, reject it or negotiate more favorable terms.  The following list of recurring “issues” that appear in sports credentials may assist you in identifying troublesome provisions when you are presented with new credentials to cover a league or team:

Generally

•    The credential may provide that the audio, video, or photos you capture only be used on certain media platforms.  For example, the terms may allow broadcast on television or radio, or publication in newspapers and magazines, but prohibit publication of some or all content online or on mobile platforms.  They may also prohibit the use of content, especially photo or video content, in books or more “perpetual” media.

•    Credentials often limit the use of content, especially “non-textual” (i.e., photos, audio, or video) content, to news, editorial or “First Amendment protected” purposes.  And even editorial use may be limited.  For example, some credentials allow only for use of video footage online in a one time web site simulcast of the station’s regularly-scheduled news broadcast. 

•    The team, league or event often attempts to assert a property right in the event itself with language that grants the credential holder a “license” to use material it has compiled, consistent, again, with news, editorial or First Amendment protected purposes.  A variation involves asserting copyright in the journalist’s work, with a similar license granted to the publication.  We believe either one is contrary to well-established law that says the copyright in any original , fixed work vests with the creator – such as the photographer or cameraman.  

•    Quite often, the credential limits publication of information while the event is in progress.  While some limit “real time descriptions” or live blogging (without clearly defining what constitutes either one), others will forbid any in-game information.  The most common restrictions of real-time publication will often require a time delay, such as only allowing score updates at the end of a quarter, half or game, or publication of photos on a certain time delay.  It is very rare that a credential will allow any use of audio or video during a game.

•    The league, team or event will often require that the credential holder link back to the league, team or event website.

•    The credential will often reserve the right to eject the credential holder for any reason or “without cause” and will further reserve the right to bring criminal or civil penalties for trespass in the event  that the credential holder does not comply with the terms of use on the credential. 

•    There is often a prohibition on the distribution of content to end users, forbidding syndication or other authorized redistribution by third parties.  You should be careful to ensure that this does not prevent common news-sharing activities.

•    These general concerns are often repeated with regard to specific content such as photos, audio or video.  However, these specific types of content, as well as the issue of live blogging, are also addressed separate in certain credentials and, thus, merit special emphasis below as well:

Audio/Video

•    The credentials often try to make  access to highlights of game action  too difficult, expensive or burdened with conditions.  Examples include:

•    Forbidding journalists from capturing their own video of game action while withholding highlights created by the issuing body or its authorized partners.
•    Imposing unreasonable time, place, use, or duration limits on journalists’ stand-up or other non-game action video recorded at the venue.
•    Making other unreasonable demands on videographers in the name of “security and safety.”

•    The  credential may try to control how video is displayed.  Examples include:

•    Completely prohibiting the posting of any audio or video while the game is in progress (or at least mandating a significant time delay).
•    Limiting the total amount of audio or – more often – video that can be posted after the game is over and requiring that the credential holder remove that audio or video from its website within a certain period of time.
•    Limiting online video to the simulcast of a broadcast news feed which must be of a limited duration (often about three minutes) and which must be taken down within a specific time period.
•    Forbidding any adjacent advertising or requiring use of the league or team’s video player on the journalist’s web site.

Blogging

•    As discussed above, the credentials may attempt to prevent “live blogging” by:

•    Only allowing updates that do not simulate or purport to simulate a real-time play-by-play account of the game, while failing to clarify the difference between “permitted updates” and the prohibited “real time” updates.

•    Explicitly preventing any in-game updates of any kind, save for score updates (which may or may not allow statistical updates and news about “historical” events) at the end of every quarter, half or game.


Photos

As discussed above, the credential will often assert that the issuing body (the league, team or event) has a copyright in the holder’s photos.  The following provisions all stem from the assertion of this right.

•    There is almost always a limit on the number of photos that can be published while the game is in progress – which almost always carries a time delay. There may  be a limit on the number of photos that can be published after the event and a limit as to how long the photos can remain accessible after the event.

•    In this same vein, the credentials may try to control how photos are displayed on news pages.  The most egregious example is to forbid the archiving of photos or creation of photo galleries. 

•    The credential may prohibit all non-news, non-editorial uses of photos, expressly forbidding their sale or other redistribution as a way of preventing others from any commercial use of the photos. 

•    The issuing body may require either (a) a right to purchase photos at a low price (often requiring a right to purchase at the most favorable terms offered to third parties) or (b)  assert a right to a free or low-cost license to use journalists’ photos on demand.  In many instances, the  issuing body may simply try to “free ride” off your efforts by demanding a right to use the photos for their own news, editorial or “First Amendment protected” purposes.