Streaming and licensing versus the First Amendment

In a recent case, a federal appeals court held that “nothing in the First Amendment confers on the media an affirmative right to broadcast entire performances,” and enforced a licensing agreement placing limitations on the media’s ability to stream whole events.

In Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., the U.S. Court of Appeals in Chicago (7th Cir.) held that the news media could not stream entire tournament games of the Wisconsin Interscholastic Athletic Association (WIAA), as the WIAA had given video production company American-HiFi the exclusive right to stream nearly all of its games online.

The agreement between the WIAA and American-HiFi permitted media coverage before and after games, as well as broadcasting of up to two minutes of a game. Others could stream entire games only upon obtaining permission and paying a fee to American-HiFi.

In protest of this exclusive licensing scheme, The Post-Crescent, a Gannett-owned newspaper in Appleton, Wis., streamed four WIAA football playoff games without seeking permission, and WIAA sued. In court, Gannett argued that WIAA’s grant of an exclusive streaming license to American-HiFi and its media policies regarding Internet streaming violated the media’s First Amendment right to cover and comment on school sporting events.

The court drew parallels between this case and the U.S. Supreme Court’s decision in Zacchini v. Scripps-Howard Broadcasting, where the Court had held that the First Amendment did not shield a television station from liability for filming and broadcasting all 15 seconds of a county fair performer’s “human cannonball” act.

The Court in Zacchini had distinguished between the media’s permissible right to report on the act from the impermissible broadcast of the entire act; to broadcast the whole would strip the economic value from the performance. The court analogized its case to Zacchini, saying, “Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it.”