Tuesday, September 19, 2006 - The Progress & Freedom Foundation Blog

Who Can Film Video Clips at a Pro Football Stadium?

So here's an interesting legal question that involves the First Amendment, copyright law, technology policy, and property / contractual rights: Who has the right to film videos at a professional football game? I'm not talking about the live video feed of entire games; that's clearly copyright-protected. Instead, I'm just talking about select video clips of portions of games for journalistic purposes.

Here's why I ask. Ten days ago, David Rehr, the head of the National Association of Broadcasters (NAB) sent a letter to the National Football League's (NFL) new commissioner Roger Goodell inquiring about a recent NFL policy change regarding local television station coverage of games. Last year, for reasons I have not been able to determine, NFL team owners decided to reverse a long-standing policy that allowed local broadcasters to film video clips from the sidelines during football games. Apparently, local TV broadcasters will now have to get that footage from the TV network that broadcasts the game or from NFL Films, which is owned and operated by the National Football League.

I'm going to attempt to fairly weigh the arguments on both sides of this dispute even though I have a particular (and admittedly peculiar) bias in this matter that I will admit to at the end of the essay. (See * below).

OK, so what's the broadcasters beef with the new NFL rule? The NAB argues that:

"In order to differentiate their coverage from higher budget national broadcast and cable sport shows, local broadcasters must provide their viewers with unique and highly local stories. Those stories may include coverage of a particular player, or defensive scheme, that may be difficult to delineate from network or low-angle pool video. For local broadcasters working on a limited budget, outsourcing coverage to NFL Films is not a viable option. Without the opportunity to shoot their own video, local broadcasters will scale back coverage of NFL games, and may be forced to cancel shows dedicated to local NFL teams. Over time, this decrease in exposure will affect ticket sales."

It's an interesting argument and the NAB may be correct that local TV stations could scale back coverage. More realistically, I think they'll just continue producing their various local sports shows but scale back the video portion and focus on talk instead. And I doubt any of this will really affect aggregate ticket sales, but I could be wrong.

But the NAB makes a second argument that I think is more interesting:

"The change... affects only local television broadcasters and not newspaper or Internet reporters. . . [B]ecause the ban is limited to local television broadcasters, and not other journalists, it raises serious legal questions. Considering that many NFL stadiums are taxpayer funded, the ban may run afoul of laws requiring reasonable and equal access at otherwise public forums."

Let's unpack that argument a bit and do it in reverse order. First, is an NFL stadium a "public forum" as the broadcasters suggest? If so, then the NAB certainly has a strong case because our legal system provides clear First Amendment protections for individuals who want to speak in, or report from, areas that are considered public forums, such as public parks, town squares, and government buildings.

But are football stadiums really the same thing? Returning to the NAB's letter, you will recall that the broadcasters claim that "many NFL stadiums are taxpayer funded. . ." That's true, but not all of them are. Should the rules regarding filming video clips from a game differ according to how a stadium was originally financed? I suppose that's one solution, but then we'd have differing standards in each city. But if a professional team received public funds, I think a good argument could be made that certain strings can be attached, including the potential requirement that local TV broadcast journalists be given some reasonable access to the games so they can report back to the community. On the other hand, if the stadium was financed entirely with private funds, one wonders if the broadcasters have a legal leg to stand on. I suppose you could still claim that sports stadiums are public forums, but the legal cases I've seen for other big private spaces that attract crowds (like shopping malls) do not bode well for the broadcasters.

But let me get back to the other argument that the broadcasters make; that this new NFL policy unfairly singles out local television broadcasters relative to all other types of media. Again, if the broadcasters could make the legal case that a football stadium is a public forum, then this makes their argument even stronger since it seems very unfair to treat local TV broadcasters differently from everyone else (like radio, newspaper or magazine reporters).

And I also wonder just how far the NFL might go to try to enforce such a ban. Restricting the big cameras a local TV station might want to bring into a stadium will be easy, but what about all those little cameras many of us have in pockets today embedded in our cell phones? I was recently at a ballgame and took a video of my kids using my new cell phone. As I was doing so, someone made a stupid play in the field behind them and I actually played the clip back to a friend later in the day. Taking this a step further, imagine I snapped a few video clips of an NFL game using my cell phone and later posted them on a webpage along with some amateur commentary breaking down the plays. Is the NFL going to come after me, my website operator or my ISP? Even if my site was not commercial and my video was fuzzy, the NFL might still be able to make a copyright case against me.

But I don't think that would be very smart for the same reason that I don't think the NFL's current policy toward TV broadcasters is very smart: It creates a lot of ill-will, not only with journalists but also with the public. If there's one thing that's clear about football in the U.S. it's that fans just can't get enough of it. Even if the NFL allowed local TV broadcasters or others (like amateur sports bloggers) to take a few shots at a local game, it is difficult to see how this will negatively affect the league or any team's revenue stream. People are still going to watch all the games and the NFL Films programming.

Of course, I could make a case for the NFL. Keep in mind that, at root, the National Football League is just a private club. A group of teams long ago came together to form a sports league and they've added some new clubs as the years have gone on. The owners of these clubs get together and make private rules for their private club. And those rules include the rules governing who gets to telecast games. And the NFL takes its copyrights VERY seriously. No one gets to produce retrospective / historical films about football games without the NFL's permission.

* And I think this is a real shame since I find the quality of NFL Films productions to be absolutely horrendous. (Here's that peculiar bias of mine). Yes, I know I'm in the minority on this point, but I feel that being forced to watch classic pro football games entirely in slow motion with a slow, boring voice-over and cheesy background music is an absolute betrayal of the true beauty of this game. By contrast, I love watching old college football games on ESPN Classic precisely because they show the entire game in real time with the original announcers, bad video graphics, and everything else. Again, most importantly, instead of using all that silly super-slow-mo nonsense that NFL Films employs, the old college games are replayed in their entirely at the actual speed the game was being played and broadcast back then. That's how I want to remember those games and I'd love to be able to show my son some of those great NFL games I grew up watching in the same format they were shown back then. In particular, I can think of a few Monday Night Football games featuring comical Howard Cosell play-by-play that I would pay good money to see just as they were produced back then.

Having said that, it is clear to me that NFL does have rights to those games, including the copyrights to make those terrible mini-documentaries about each game. So, I haven't really come to any conclusion here other than to use this essay as a opportunity to rant about how much I despise NFL Films for depriving the public of worthy historical archives of this great American sport! But for that reason, I'll be secretly rooting for the broadcasters to prevail in this fight and win back the opportunity to shoot video clips at NFL games.

posted by Adam Thierer @ 9:25 AM | Free Speech