By Mickey H. Osterreicher, Esq.
SPRINGFIELD, IL (November 16, 2007) - After filing a law suit earlier this month, it appears that the Illinois Press Association (IPA), together with the State Journal-Register and the Northwest Herald (the plaintiffs in this case), have asked the court to withdraw their request for a preliminary injunction in the litigation currently pending with the Illinois High School Association (IHSA).
IPA filed their lawsuit against the IHSA in an effort to overturn a rule that limits access to school sporting events and the use of photographs taken at those events.
The complaint alleges that IHSA has contracted with Visual Image Photography Inc. (VIP) for “exclusive and unlimited access to IHSA tournament locations and photo opportunities.” At the same time, as a condition of receiving a media pass, newspapers are required to sign an agreement limiting their own access and prohibiting the “secondary use” of photographs not printed in the traditional newspaper.
IPA's lawsuit has three basic causes of action: First, that by accepting the IHSA's credential terms IPA members are prohibited from publishing photos anywhere except in the newspaper (no Web, no print sales), and that's "prior restraint" and unconstitutional; Secondly, that by giving VIP photographers (the third-party firm hired to shoot for IHSA) preferential treatment IHSA is violating the state's constitutional guarantee of equal protection under the law; Additionally, IPA asked the court for a temporary restraining order against IHSA to keep them from implementing their credential rules, which would have kept IPA members from covering state high school games if they did not agree ahead of time to comply with the terms.
In an attempt at a compromise and at the suggestion of the judge in this case, IPA has now withdrawn their request for a temporary restraining order, based on a tentative a working agreement with IHSA which will allow IPA members to cover the games without having to promise to not publish online, and without having to promise to not sell reprints.
What the parties have yet to determine is what the term "secondary use" means, and IPA has told the court they will submit a revised complaint within 30 days that spells out what they want the court to take action on in that regard. It's possible that before the 30 days pass, IPA and IHSA may reach an agreement on their own regarding the credential agreement and photo rights. Since Visual Image Photography, Inc. (VIP) also has a contract with IHSA that spells out their rights and terms, its possible that IHSA now finds itself in the position of having to reach new or modified agreements with both VIP and IPA to keep from being sued by one or the other, or both.
The IPA is a statewide association of 600 daily and weekly newspapers, published throughout the State of Illinois. Among its stated purposes is the protection of the news gathering and business interests of those Illinois newspapers.
According to the complaint filed by the IPA, the Illinois High School Association (IHSA) is an organization formed to regulate sports activities at Illinois high schools and as such is a “state actor” based on the public character and nature of IHSA’s members and as such “constitutional protections of a free press and equal protection” can be applied.
IPA brought suit against IHSA after IHSA required that in order to be allowed to cover state football finals those seeking credentials abide by the rules as articulated in the “2007-08 Football State Final Media Arrangements.” According to its complaint IPA alleges that the executive director of IHSA has also “asserted to the IPA that secondary use is any use other than in a traditional newspaper story” and that “so long as the newspapers use a photograph in a traditional newsprint and ink news story, they may use that photograph for any other purpose;” but that “photographs that are not printed in the newspaper are subject to the ‘secondary use’ restriction.”
What the IPA claims is that IHSA “grants privileged access to IHSA events to one set of photographers (VIP, the photography company contracted with by IHSA to photograph the events), allowing those photographers access to news gathering opportunities, while denying access to photographers from plaintiff newspapers that same opportunity.” IPA alleges that “this rule constitutes a violation of the equal protection clause of the Illinois Constitution, as well as an unconstitutional prior restraint on news gathering activities.”
The complaint alleges that “IHSA has executed a contract with Visual Image Photography, Inc. (VIP), by the terms of which VIP pays monetary consideration to IHSA for the privilege of having exclusive and unlimited access to IHSA tournament locations and photo opportunities. By the terms of this contract, a photographer of VIP will have exclusive and unlimited access to tournament action and trophy presentations, and other forms of preferential treatment, for the sole purpose of enhancing the commercial value of those events for IHSA and VIP. VIP then offers those photographs for sale to participants, their schools and families. IHSA promotes VIP as the ‘official photographer of the IHSA’.”
IPA also claims that IHSA has adopted a rule, prohibiting any ‘secondary use’ of photographs taken by photographers from their newspapers. The rule states, “Note: Any secondary use of photos for sales, advertising or promotion is prohibited without prior written approval of the Illinois High School Association.” But the IPA claims that the term “Secondary use” is not itself defined. IPA claims that “this rule constitutes an unconstitutional prior restraint on their rights guaranteed by Article 1, Section 4 of the Illinois Constitution.”
At the court’s suggestion after the parties first appearance, representatives from IPA and IHSA met on November 13, 2007 to discuss the case. As a result of those talks - in which the IHSA appears to have revised their access rules for press photographers and the use of photographs in newspaper and Web-based news stories - IPA agreed to withdraw its temporary restraining order request.
It appears that the IPA Board has a proposal from IHSA revising its "secondary use" policy, which will be discussed at the December IPA board of directors meeting. According to Don Craven, general counsel for the IPA, the IPA will file and amended complaint within thirty days but it appears that this dispute may be resolved by the parties themselves without need for further litigation.
Osterreicher is the general counsel for NPPA and a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for over thirty years and has been involved in attempting to resolve the ongoing dispute between the press and interscholastic athletic associations in a number of states.
