This article appeared in the September 23, 2007, edition of the Arkansas Democrat Gazette's Opinion section:
By Jack Zibluk
In a media-saturated environment where everybody with a Myspace or Facebook page can take and post pictures of themselves and their activities, legal questions run far ahead of the attorneys, scholars and professionals who can answer them.
The biggest questions often concern what’s public and what’s private, who owns images and content and what rights and responsibilities the owners have.
Such is the case of the Arkansas Activities Association. The AAA lined up offside and proceeded to commit a flagrant foul when it adopted policies last summer assuming that it can claim copyright protection and control the uses of the images media outlets and others can take at high school tournaments.
The AAA cannot legally claim copyright control, and just saying that it can doesn’t make it so.
Under the federal copyright Act of 1976, works qualifying for copyright protection must be “original” and “fixed,” meaning they must be clearly recognizable as the works of a given artist or producer, and they must be recorded and preserved for presentation in traditional or digital media. Copyright law gives ownership of copyright privileges to private companies whose employees produce protected material. For example, when a newspaper photographer or graphic artist produces an original work, copyright ownership belongs to the newspaper publisher, not the individual photographer or artist.
In one more wrinkle, the owner or promoter of a private event, such as a concert or a professional athletic event, can claim copyright ownership since he or she owns or rents the venue and/or the event itself. It’s like owning or renting a house. Anybody taking pictures in a private house needs permission from the owner to make money off images of the belongings.
But the AAA doesn’t produce the pictures, and more importantly, it doesn’t own the house. We taxpayers do, and the AAA policies are an affront to the public whose interest it is supposed to serve.
Part of that service is ensuring the games run well, efficiently, and most importantly, safely. Having sidelines swamped by professional photographers, amateurs, students and parents would be true chaos, so there have to be some limits. That’s what press passes and other credentials are for: to ensure the safety of students and spectators by limiting access to professionals who should know what they’re doing.
But that’s not what the new rules are really about. They’re about money. The new AAA rules allow media and independent photographers access to games, but they give the AAA the right to control the resale of the images. Possible markets include parents, students and scholastic publications and Web sites. And while public relations may be a secondary concern, it is dubious that the AAA would make any other-than-school-spirit-inspiring pictures available to the public.
The power to limit sideline access doesn’t give the AAA ownership of the images under copyright law. The individual photographer does if he or she is self-employed. That photographer can decide to license or sell the copyright, but it’s his or her decision to do so. The AAA can control or sell those images or use them any way it wants, once it buys the copyright. The AAA had designated photographer Tom Ewart to provide images of tournaments, and he’s excellent and professional.
He can’t be everywhere, and anyone affiliated with him is accountable to him and the AAA. Independent images makers are responsible to the audience, and they are responsible to tell the truth, even if the truth includes some flagrant fouls, injuries, abusive coaches or other images that wouldn’t please the pep squad. Those images, however, help ensure that abuses won’t be repeated. That builds an atmosphere of trust, which truly builds support and school spirit.
The new rules damage school spirit. They represent an effort to turn something authentic about the high school experience, warts and all, into something to be packaged, sanitized and re-sold at a profit. That profit is tiny at best. Any photo editor will tell you that the re-sale of images makes a negligible amount of cash. So not only are the new guidelines wrong legally and ethically, they’re not even worth the effort financially.
The AAA is not unique. Scholastic organizations and government agencies nationwide have been making similar efforts to limit media and public access, claiming the same reasons—a concern for public safety and a right of ownership. When a private organization makes such an effort, it may be only unethical, but when a state, local or federal agency does it, it is just wrong, both legally and ethically.
And when an educational group does it, it’s immoral because it teaches young people that making a few bucks and spinning a positive image is more important than openness and an honest discussion of a unique and special experience in a young life.
John B. “Jack” Zibluk is associate professor of journalism at Arkansas State University, and vice president of the National Press Photographers Association.
