By Mickey H. Osterreicher, Esq.
BUFFALO, NY (November 21, 2005) - The recent incident involving two Syracuse, NY, photographers is a case study in property rights. In question are the rights of the photographers, the school, the athletes depicted in the photographs, the National Collegiate Athletic Association (NCAA), and a Web site where the images were posted. Governing these overlapping and possibly conflicting rights are the terms whereby each party agreed to participate in the events, which in this case were college football games.
The undisputed facts are that Kirk Irwin is a graduate student at the S.I. Newhouse School of Public Communications at Syracuse University and an unpaid staff photographer for the school's student newspaper, The Daily Orange. Niko Kallianiotis is a staff photographer for the Watertown Daily Times. Both were granted access to photograph Syracuse University football games by the school's athletic department. The Web site where some of their images were posted is SportsShooter.com. The Syracuse football team (the Orange) plays in NCAA Division I.
In pertinent part the language of the NCCA Terms and Conditions for Use of Credentials as revised in August 2005 reads:
Each individual or entity signing for or using a credential for access to any tournament game or practice (the "Events"), and his/her/its employers (each signer, user and employer, a "Bearer"), agrees to the following:
… The use of any account, description, picture, photograph, video, audio, reproduction, or other information concerning the Events (the "Event Information") other than for news coverage of, or magazines, books or stories about, the Events, or for First Amendment-protected purposes, is prohibited, except (a) with the prior written consent of the NCAA or (b) as specifically licensed herein. Nothing in these terms and conditions authorizes or allows Bearer to violate any of the NCAA trademarks, copyright and other proprietary rights. …
… The credential confers on Bearer a limited, non-exclusive and non-transferable license to take photographs of the Events, and to allow the entity that engaged the Bearer to take the photographs to use such photographs, only for news coverage of, or magazines, books or stories about, the Events, other editorial purposes, and reprints of news pages from such entity's publications, provided that such use is not likely to create, or does not actually create confusion in the minds of the trade or public that Bearer or its reprints or any elements therein, or the items on which they are reprinted, are sponsored or endorsed by, or are associated or affiliated with the NCAA or that the NCAA licensed Bearer to use their trademarks or copyrights. …
… Any secondary use of any picture, audio description, videotape/film or drawing of the game taken or made by the accredited organization or individual to whom this credential has been issued (including, but not limited to, use in delayed editorial or noneditorial, advertising, sales promotion or merchandising) is prohibited without prior specific written approval of the NCAA. …"
Of key importance in the above terms and conditions is the language "or for First Amendment-protected purposes" and the "secondary use" prohibition in the last paragraph. It is also important to note that while the NCAA delegates credentialing authority to the individual schools (and/or their athletic departments), in this case, according to a recent article on the NPPA Web site news pages, Syracuse University credentials to these games were "issued in 'good faith' by the University, without any written limitations or contracts associated with their use."
Some of the sports photographs posted on SportsShooter.com were from football games played by Syracuse athletes. Ostensibly these photographs were placed there by the photographers in order to promote their work and get feedback from other photographers. The University's director of athletic communications was concerned that those images might be an invasion of the athletes' right to privacy and might also negatively impact on their NCAA standing as amateur athletes.
Interpreting its own by-laws, this past spring the NCAA issued the following with regard to "Use of a Student-Athlete's Picture Without Knowledge or Permission":
If a student-athlete's name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete's knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete's photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use. (Revised: 1/11/97, 5/12/05)
If the last sentence of that NCAA Division I interpretation is to be taken literally, then it would appear that the school's concerns are unfounded, depending on the interpretation of the phrase "for private use." For a school official to state that "the student photographer doesn't have a right to use a student athlete's image in a portfolio," although coming from a position of genuine concern, may be a bit overzealous in denying that photographer a "First Amendment-protected purpose."
The terms and conditions for use on SportsShooter.com state that it "is a site for buyers of sports photography to find photographers, editors, students, interns, assistants and other creative persons, and for all types of photographers to display samples of their work." "Posted Content" in pertinent parts states: As part of your use of the Site, you may upload, post, distribute or disseminate (collectively, "post") samples of your work, images, videos, animation, files, data, information and other content and material (the "Posted Content") on the Site. … Members are permitted to post messages to the SSC message board, and use the features and functions it contains. However, SSC may deactivate a Member's page, delete the page from the Site without refunding the membership fee, or take any other actions it deems appropriate under these Terms and Conditions if a Member misuses the message board. "Misuse" of the message board includes (but is not limited to) the posting of any type of commercial announcement or advertisement . …
It would therefore appear from this language that this Web site serves no commercial purpose for its members and, in fact, prohibits any commercial use. For a photographer to display his or her work in portfolio form in order to get an assignment or a job appears to be more in the nature of "private use" and should not come into conflict with the NCAA rules, although the university itself may decide to include future language in providing photography credentials that would limit such usage.
It can only be hoped that given an educational institution that is home to both a world-class journalism school and nationally-recognized sports teams, this might become the fertile ground for collaboration rather than dissension on these property right questions.
See earlier related story, "Syracuse University's Credential Threat Raises Copyright Questions," by Sedda Kreabs.
Mickey H. Osterreicher has been a member of the NPPA since 1972 and is the chair of the Government Media Relations Committee and also a member of the Advocacy Committee. He has been a photojournalist for over 30 years in Buffalo, NY, where he now practices law.
