By Donald R. Winslow
SPRINGFIELD, IL (January 24, 2008) - Illinois lawmakers have joined in the fight over whether the Illinois High School Association can prevent newspaper photographers from covering public school academic and sporting championship events games, and whether they can regulate the secondary use of photographs and videos that come from the events.
A new state law proposed this week comes in the aftermath of a dispute between the IHSA and the Illinois Press Association, a disagreement that reached a boiling point last November when several Illinois newspapers were prevented from photographing the state's high school football finals and championship games.
And now Illinois lawmakers have proposed legislation intended to resolve the current conflict and to keep it from happening again.
Rep. Joseph M. Lyons (D-Chicago) has introduced House Bill 4582 which, if voted on and signed into law, will provide open access to all competitions, from elementary school to high school levels, including sports and academic activities.
And Sen. James A. DeLeo (D-Chicago) has agreed to file an identical bill in the other chamber of the Illinois General Assembly.
"The synopsis of the proposed bill provides that 'no public elementary or public secondary school in [Illinois] nor any association or other entity that sponsors, regulates, or in any manner provides for interscholastic athletic, academic, or other form of competition among schools and students within this state may infringe upon or attempt to regulate in any manner the dissemination of news or the use of visual images by the news media of interscholastic athletic, academic, or other form of competition among schools an students within this state,'" NPPA's general legal counsel Mickey Osterreicher said.
In a press release the IPA's executive director Dave Bennett said this week, "This legislation will send a clear message the public school events are public events that cannot be regulated as if they were private."
Bennett told the Peoria Journal Star, "What we are asking the Legislature to do is to allow newspapers to do what they have always done for at least a century without interference from any governmental or quasi-governmental entity ... The bulwark of our very existence is our relationship to our communities, and the IHSA seeks to control that relationship for its own commercial purposes. That's just wrong."
Bennett said, "The new legislation reiterates that the news media own their own products and those products cannot be regulated by some other party, especially not by government or some entity like the IHSA representing government."
The dispute which has now come before the Illinois Legislature had already been traveling through the state's judicial system with lawsuits an counter suits.
In November 2007 the IPA, representing Illinois newspapers, sued the IHSA over the issue of access to high school championship events and photo sales. The parties said they were trying to reach an out of court settlement on the issue of "secondary use" of images right up until the end of November, when several Illinois newspapers were surprised to find that their photographers were shut out from the eight championship football games and the title games because IHSA said they were not "in compliance" on the issue of print sales.
In December 2007 the IHSA filed a counter suit in Sangamon County Circuit Court in Springfield asking a judge to declare that IHSA has the exclusive right to sell photographs taken at high school sporting events, and the right to impose limits on how newspapers use photographs, and for permission to restrict newspapers' access to IHSA games if editors and publishers fail to comply with IHSA polices.
The countersuit named IPA, the Peoria Journal Star, The State Register-Journal in Springfield, and The Northwest Herald in Crystal Lake, and asked for at lease $50,000 in damage payments. An IHSA statement issued after the suit was filed said the action was necessary "to bring a definitive resolution" to the dispute.
IPA has filed a motion to dismiss, stating that IHSA is a "state actor" and therefore bound by the Illinois constitution regarding freedom of the press and free speech guarantees, and as such they cannot exert "prior restraint" upon newspapers in both their coverage and dissemination of photography of newsworthy events, and that IHSA has no cause of action against the newspapers, and that IHSA cannot legally contract with a third party granting exclusive license to cover public events.
IHSA has had a contract with a third party - Visual Image Photography Inc. of Cedarburg, WI - since 2001. The agreement grants the commercial photography business "exclusive rights" to take and sell photographs from state athletic championship games.
IPA's motion to dismiss also claims that IHSA's contract with VIP Inc. is "against public policy" and that as a result there have been actual damages to the newspapers (monetary loss) while the newspapers were engaged in the constitutionally privileged activity of gathering news.
IPA's original complaint against the IHSA stated three causes of action: unconstitutional prior restraint again secondary use and publication of photographs; unconstitutional prior restraint against coverage of events by the newspapers; and preferential treatment of VIP Inc. photographers in violation of the equal protection clause of the state's constitution.
In its amended complaint the IPA is now seeking a declaratory judgment stating that high school championships are events of public interest and that the distribution and sale of reprints of photographs and articles from the editorial products of Illinois newspapers promotes Illinois newspapers in their communities. The IPA also wants the court to declare that the newspapers' sale of reprints of photographs from high school championship events are protected by the Illinois constitution, and further declare that any effort by IHSA to limit that protected activity is invalid.
Whether it's decided by a House and Senate vote and a new law or in the courts, what the IPA is after is a way to prevent the IHSA from providing VIP Inc. or any other third party photographers from any greater access to any aspect of any IHSA event than any newspaper photographer, and a way to keep the IHSA from trying to implement or enforce any limitations on the secondary use of images from those events.
Mickey Osterreicher contributed reporting to this story
