Battle Over Images Is Becoming Big League

Major League Baseball’s attempt to restrict how media companies use photographs shot during games marks the latest salvo in a wide-ranging battle over who controls information.

Baseball’s move is not aimed at newspaper and magazine coverage that benefits the national pastime. But the league wants to limit how many photos are transmitted during games and how they’re used. Negotiators for MLB and publishing companies said Tuesday that they are close to an agreement that would end the dispute.

But whether it’s in the press box, the recording industry, a big media company or the rarefied air of Hollywood, the battle for control over photos, words and images is intensifying.

“Content is king, and everyone wants to control the content,” said Jonathan Tasini, president of the National Writers Union, which sued the New York Times on behalf of freelance writers who allege copyright infringement.

Although Tasini’s lawsuit deals largely with online distribution of articles, “It’s not just about the Internet,” he said. “It would be the same [argument] if we were talking about carving on stone.”

People with famous faces have always tried to control how their images are used.

“It’s definitely been getting worse in the last six months to two years,” said Julie Grahame, president of Retna Ltd., a New York-based agency that specializes in celebrity photos. “It’s about control. . . . They simply want to control things.”

Copyright Battles

Even owners of racehorses, natural landmarks and buildings are getting into the act. The Rock ‘n’ Roll Hall of Fame in Cleveland unsuccessfully sued a photographer in 1998 for featuring the distinctive building in a colorful poster.

Loyola Law School earlier this month framed the debate in a symposium titled “One Princess, One Tiger, Two Robots and Three Stooges,” a tongue-in-cheek title referring to copyright battles involving the late Princess Diana, golfer Tiger Woods, the actors who played Norm and Cliff in the “Cheers” TV sitcom and the estates of the Three Stooges.

“Each of these cases pits a 1st Amendment right against . . . the right to control commercial exploitation of a person’s likeness or image,” said Loyola Law School associate professor Jay Dougherty. “These cases are always easy to decide at the extremes. But there are an awful lot of hard cases the closer you get to the middle.”

The middle ground has grown more crowded in part because of digital technology that makes it easier to store and distribute content. Writers and photographers have sued National Geographic for reproducing their magazine work in a pricey CD compilation.

“I’m sure glad that animals don’t retain legal counsel,” said Larry Minden, owner of an Aptos, Calif.-based agency that represents several professional wildlife photographers. “The whole trend in the [photography] industry scares me.”

The disagreement between MLB and publishers involves “a relatively limited number of issues, but they’re critical issues that bear upon the intellectual property and 1st Amendment rights of the teams and the media,” said Dale M. Cohen, operations editor for the Chicago Tribune, which represents Tribune Co. papers, including the Los Angeles Times.

Publishers say sports leagues have no legal right to tell them when news stops being newsworthy or how their words and images are to be used. MLB counters that publishers should stick to publishing.

“The issue is very discrete,” said MLB general counsel Ethan Orlinsky. “We specifically allow news coverage, magazines, books, stories and the like. We’re trying to give the media the latitude it needs to write about the game.”

Two key sticking points include a publisher’s right to affix popular photos to T-shirts, posters and coffee mugs, and MLB’s demand that publications make their photos available at cost for use in league-related advertising and marketing.

The National Basketball Assn. on Monday settled a related lawsuit against the New York Times stemming from the newspaper’s decision to sell a pricey collection of game photographs taken during the 1999 NBA playoffs.

The NBA had argued that the offer violated terms of the press passes that photographers use to do their jobs. The newspaper agreed to include a reference to NBA.com in its online and print advertising.

The National Hockey League also hopes to more strictly regulate how game photos are used. “If [a newspaper] runs photos, it helps sell papers, and it creates great exposure for our game,” said Anita Cechowski, director of NHL Images. “But when it comes to noneditorial purposes, that’s not in the agreement.”

How dramatic sports photos are used touches a nerve with sports leagues for two reasons. Sports-related licensing revenue grew to an estimated $13 billion in 1999, so leagues are trying to safeguard an important revenue stream.

Leagues also are looking at potential revenue streams driven by digital products--including live game action streamed on the Internet and the wealth of historical photos now being digitized.

The MLB dispute underscores the fine line separating what newsmakers see as enough media coverage and what constitutes too much.

“There’s a delicate balance,” acknowledged MLB spokesman Pat Courtney. “We love all the publicity we get, and we want it to continue. But, in some cases, there are blatant infractions going on, and that’s what we’re trying to stop.”

Athletes, singers and actors often are at odds with leagues, record labels and the Hollywood publicity machine. But they end up on the same side in this dispute.

“We’re all for people publicizing the NFL in as many ways as possible, as long as it doesn’t violate the rights of the league and players,” said Doug Allen, president of Players Inc., the for-profit arm of the National Football League Players Assn.

Conflicting Laws

Two bodies of law are in conflict when a sports league or publicist wants to control information and images. Copyright law assigns ownership of a photograph to a photographer or his employer. Leagues and celebrities rely upon state laws that give individuals a right to control how their likenesses are used.

Some sports marketers say leagues and players are still smarting from an unsuccessful 1995 court challenge by retired NFL quarterback Joe Montana. The former San Francisco 49er star sued the San Jose Mercury News over a poster that included his photo.

“The law clearly allows for something called the incidental use exception, which means a publication that does a story about Julia Roberts should be able to use that story in its advertising,” Dougherty said.

But sports leagues and publicists argue that publishers have no business using their photographs on T-shirts and coffee cups.

Licensing companies that strike deals with stars and athletes also oppose such usage by publishing companies.

“That’s what I do for a living,” said Susan Valero, vice president of licensing and marketing for San Leandro, Calif.-based Winterland, the exclusive licensing firm for the Back Street Boys, ‘N Sync and Ricky Martin. “I have to pay money for a license to put ‘N Sync on a beach towel.”

Agreements Sought

Photographers cringe when powerful sports league and bossy Hollywood publicists attempt to slap limits on how they use their pictures.

“If you’ve captured a beautiful moment--and did it because of your eye, your skill and your equipment--you want to make copies and prints,” said Nancy Wolff, a copyright expert who represents the Picture Agency Council of America, a trade group. “You have an expectation of earning fees from that photo--for the rest of your life if it’s a really great photo.”

In a move akin to sliding a prenuptial agreement under the nose of a nervous bride or groom, publicists increasingly are likely to appear at photo sessions carrying an agreement that strictly limits how the photo shoot’s pictures can be used.

Publicists frequently demand control over who shoots pictures and which pictures are used. Some popular musical acts prohibit photographers from taking pictures during their concerts. Others demand that publishers sign agreements governing future use of photos.

“Virtually every newspaper in the country signs artists’ photo contracts, except for the L.A. Times, the New York Times and the other New York papers,” said a promoter for a major Los Angeles-based record label, who asked not to be identified.

Rockers or rappers who want complete control over photos used in album art or posters often pay $150,000 or more for outright control of a photo shoot. But that doesn’t always work.

Using increasingly sophisticated scanners, bootleggers are lifting photos from glossy magazines to create T-shirts, posters and prints of ever-increasing quality. Both the celebrity and photographer or agency end up losing.

Photo agency owner Minden, who represents photographers who earn as much as $10,000 for a single photo, worries that scanners and the Internet are creating a growing problem.

“We’ve licensed worldwide exclusive rights to a given image, and then the client finds it littered across the Web,” Minden said. “If we’re lucky, they request a refund. . . . If we’re unlucky, they sue our butts off.”