Controlling the Message – and the Messenger

From Sports to Entertainment, Restricting Journalists in Return for Access

By Kevin M. Goldberg

For many years, there was a symbiotic (some might describe it as “co-dependent”) relationship between the media and the athletes, entertainers and other celebrities they cover.  Sports teams and leagues – and recording artists – relied on the media to increase their public exposure; the newspapers, broadcasters, magazines, and, later, websites, knew there was always content that would interest readers and viewers.

That dynamic has changed somewhat in recent years as the Internet, and especially social media, has allowed professional, college, and even high school and youth sports teams and leagues, as well as celebrities like actors and singers, to reach the public directly. There’s also the added benefit (from the athlete’s or entertainer’s perspective ) of the ability to control the message.

As a result, the “credentials” issued to those who want to cover live sporting events (including not only the games themselves but practices and press conferences) or concerts are becoming increasingly restrictive.  Those who would photograph, record video and otherwise report on these events are being asked to give up more and more in exchange for access. This has played out in both athletics and entertainment for years, but it certainly seems to have become particularly troublesome with regard to the latter, leaving reporters, photographers, videographers, their bosses and the publications they work for finding themselves with an increasingly difficult choice between agreeing to contractual provisions that may seem inherently unfair or not covering the event at all, which may put them at a competitive disadvantage.

Some of the provisions we’re seeing more and more include:

  • Demands for joint – or even outright – copyright ownership of all photos taken or video recorded during a show (despite the fact that US Copyright Law has always vested ownership in the person taking the photo or recording the video)
  • Limiting access to an extremely short portion of the show (i.e., photos may be taken or video recorded for no more than 30 seconds during the first and second songs only)
  • An obligation to let the artist use photos or video for his or her own commercial purposes, i.e., t-shirts, posters, other merchandise or promotions (while denying a similar right to the photographer or publication to even distribute reprints)
  • Demanding pre-approval of any photos before they run in a newspaper or magazine, are broadcast on television or posted online

That’s why a group of 12 media associations and organizations, including two of my clients (the American Society of News Editors and the Association of Alternative Newsmedia) finally said “enough is enough” and published an “Open Letter to Performers Regarding Their Standard Terms and Conditions for Photographer and Reporter Credentials.”  The letter lays out the reasons that these progressively restrictive credentials are unfair, explains why they harm the public and why a free and independent media is no threat to the artists’ bottom line.  The point of the letter is simple:  it is in everyone’s best interests if recording artists and media can discuss how to work together rather than destroying a relationship that has worked so well for so many years.

The letter is NOT intended to call for a boycott of any individual artists or credentials in general.  It is NOT an industry-wide position in individual credentialing provisions, even those identified above or in the letter.  Every media outlet and individual photographer, videographer, or reporter asked to sign a credentialing agreement needs to make that decision for itself, himself or herself.

However, it is time that everyone – artists, media and the public alike — understands the disturbing trend that is occurring with regard to these agreements and really understands what’s at stake when formalizing the terms of coverage. Major events like the Super Bowl, the Academy Awards ceremony and the Olympics loom in 2016 and could contain similar restrictions that will affect the public’s ability to get even-handed coverage of those events.

Editor’s Note: Kevin Goldberg, who will chair the NPF Board of directors in 2016-2017, is a member of Fletcher, Heald & Hildreth, PLC. His expertise is in First Amendment, copyright and trademark issues, especially those relating to newspaper and Internet publishing. 



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