Wisconsin newspaper sued over Webcast of high school football game

We are closely watching the lawsuit filed by the Wisconsin Interscholastic Athletic Association (WIAA) against Gannett Co., the Post-Crescent (Appleton, WI), and the Wisconsin Newspaper Association. In it, the WIAA challenges the Post-Crescent's Internet broadcast of a high school football game. Among other things, the WIAA claims that the WIAA owns all media rights in sporting events that it sponsors, including the right to control "any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game, game action, game information, or any commercial use of the same of an athletic event that it sponsors."

Similar disputes have arisen and been settled in Illinois, Arkansas, and Arizona. In November 2007, for example, the Illinois Press Association filed a lawsuit challenging the Illinois High School Association’s (IHSA) media access policy, which limited access to high school sporting events and restricted the use of photographs taken at those events. The parties ultimately settled the lawsuit, with the IHSA modifying its access policy and agreeing not to restrict the secondary use of photographs and video from the events.

Obviously, one of the primary issues in these cases is whether the state athletic associations are 'state actors,' and therefore whether they are improperly restricting access, a free press, or speech in a way that runs afoul of the First Amendment. Depending upon the context, the courts have not always agreed on this issue. It is significant, of course, that the members of these organizations are primarily public schools, and the majority of the sporting events at issue occur on public school property.

The Pennsylvania Interscholastic Athletic Association (PIAA), which is a "Commonwealth agency" under Pennsylvania's Right to Know Law, has its own media access policy, which can be found on its website at http://www.piaa.org/resources/handbook/default.aspx. Among other things, the PIAA policy, as written, asserts ownership of PIAA events. It "permits" the media to use photographs and certain other depictions in news coverage. The PNA has expressed concern regarding portions of the PIAA policy, and maintains a regular dialogue with its members and the PIAA on these and other access issues.