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State may grant exclusive web streaming rights

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The athletic association that oversees public high school sports in Wisconsin is constitutionally entitled to sign exclusive contracts for online…

The athletic association that oversees public high school sports in Wisconsin is constitutionally entitled to sign exclusive contracts for online streaming of post-season tournaments, a federal appellate court ruled yesterday.

The Wisconsin Interscholastic Athletic Association has the right to package and sell its entertainment product to a video production company, and the First Amendment does not entitle media organizations to claim the same distribution rights without paying for them, the U.S. Court of Appeals in Chicago (7th Cir.) held in Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc.

The case began in 2008 when the WIAA sued The Post-Crescent, a Gannett-owned newspaper in Appleton, Wis., for streaming live coverage of four high school football playoff games, despite the sport organization’s exclusive licensing agreement with American-HiFi. The legal dispute involved tournament games only.

Gannett unsuccessfully argued that the association’s contract allowing one entity to stream an event amounted to an unconstitutional prior restraint on other media outlets, including community newspapers that were prohibited from providing real-time, live streaming of high school athletic teams.

The court noted, however, that WIAA’s media policies governing coverage of tournament games subject to the exclusive licensing agreement allowed reporters to cover the games, interview players and coaches, air up to two minutes of live coverage and otherwise “talk and write about the events to their hearts’ content.” Media companies were only restricted from streaming entire games live, the court noted.

“Streaming or broadcasting an event is not the same thing as reporting on or describing it,” the court said, relying on the 1977 U.S. Supreme Court case Zacchini v. Scripps-Howard Broadcasting Co. The Zacchini Court held that the unauthorized broadcast of an entire human cannonball act on the evening news without compensating the performer impermissibly appropriated his product. The journalist could have reported the event without filming and broadcasting it in its entirety, the Supreme Court held.

The court in this case also rejected Gannett’s assertion that as an association comprised mostly of public schools, WIAA was constitutionally constrained from engaging in discrimination when granting exclusive contracts. As a representative of taxpayer-funded schools, the organization’s events should be open to unrestricted media coverage, Gannett argued.

In this scenario, however, WIAA, in sponsoring the post-season tournaments, produces the entertainment product in a proprietary role and has the right to control its packaging and distribution and raise revenue from it, the court held.