Common Cents
Your Right$ Vs. Their Right$
May 2008

by Mark Loundy

"A place belongs forever to whoever claims it hardest, remembers it most obsessively, wrenches it from itself, shapes it, renders it, loves it so radically that he remakes it in his own image."

Joan Didion

No news source should be able to dictate what a news organization can publish or broadcast from a news story. But, increasingly, that is exactly what is happening. Most recently Major League Baseball (MLB) issued rules restricting news organizations from transmitting or displaying more than seven images from any one game. They also wanted to limit online photo galleries to no more than 72 hours unless accompanied by a written article.

The Illinois High School Association (IHSA) also has its rules. The group required news organizations to agree not to sell prints from game coverage — something that most newspapers have done routinely for many years. The rules were prompted by an agreement the IHSA had signed with an event-photography company granting it exclusive rights to sell prints from IHSA events.

After negotiations with industry groups, MLB increased the daily online image limit to 15, but the time limit remains. The IHSA has suspended its rules, but lawsuits between the IHSA and the Illinois Press Association remain active. Additionally, the Illinois State Senate has introduced a bill that would forbid the IHSA from imposing usage restrictions on news media organizations.

These First Amendment issues run smack-dab into property rights and the ability of an event owner to award exclusive rights to their product. MLB, other sports organizations and groups like the Motion Picture Academy have a perfect right to say who and who cannot disseminate their product and in what medium. But groups like the IHSA, although private, are, according to NPPA attorney Mickey Osterreicher, so-called "state actors." "In other words," says Osterreicher, "they are acting as if they have a governmental function and as such are subject to both state and federal free speech/press constitutional constraints."

But newspapers are not without limits. "I raised this issue and heard that a number of papers were sending their photographers to high school games with instructions to shoot at least one frame of every player," said Osterreicher. "Then the papers were dumping the whole take onto their Web site and advertising the photos for sale. If this is true or widespread it would undercut our whole argument."

While there is no question that the First Amendment protects coverage of spot-news events in public places, it is also clear that private events may be legally controlled by their organizers. Organizers may say who may or may not attend. They may also require that attendees agree to certain conditions.

Journalists are equally free to decline to agree and simply stay away.

Since this was originally written, the Illinois High School Association and the Illinois Press Association have settled their lawsuit. The IHSA has removed all usage restrictions from its rules.

Major League baseball has also further relaxed its rules for still images but continues to restrict newspaper use of video.

The Good

• Vector Management — gatekeeper for Kid Rock — for allowing photographers to cross out the "free-use" clause in their credential agreement. Now if they could just remove it entirely.

Photo District News and National Geographic Traveler for their "The Great Outdoors" photo contest. The contest organizers rightly restricted any uses to those in connection with promoting the contest itself. Unlike many other contests, this one isn't amassing a library of images on the cheap.

The Bad

• for contacting a photographer and telling her how beautiful they thought her Web site was and then offering zero compensation for an image they wanted to use. was bad, not beautiful.

Inside Lacrosse for their Work-for-Hire contract.

• MARCOA Publishing for their $750 Work-for-Hire contract for a 16-hour shoot. While I don't suggest ever working by the hour, this one could not possibly be profitable unless you live with your parents and you have a rich uncle paying for your equipment.

The Ugly

Diamond Magazine is looking for photographers to shoot models in exchange for ten bucks a photo.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.


NPPA Independent Photographers Toolkit

Advertising Photographers of America Business Manual

Common Cents Column On The Cost of Doing Business

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Editorial Photographers Yahoo! Group (Message Archives)

Small Business Administration

NPPA Online Discussion Group Instructions

© Mark Loundy

Mark Loundy is a visual journalist, writer and media consultant based in San Jose, California.