By Dennis Read
Dennis Read is Associate Editor at Athletic Management. He can be reached at: dr@MomentumMedia.com.
Athletic Management, 18.5, August/September 2006, http://www.momentummedia.com/articles/am/am1805/whoownsit.htm
As the Notre Dame football team rose in the national rankings last fall, Senior Associate Athletic Director John Heisler noticed a side effect that caused him concern. The interest in Head Coach Charlie Weiss’s press conferences grew to where some Notre Dame fan Web sites were videotaping them in full. The sites then made the videos available for viewing and download only to their paid subscribers.
But effective Jan. 31, Notre Dame told the Web sites, and anyone else with similar intentions, that they would no longer be permitted to carry full, unabridged copies of the school’s athletic press conferences. Footage from any single press conference would be limited to three minutes and could be used only within a seven-day window—regulations similar to those typically governing the use of game footage.
“Our objection was with people who were going to record the entire event and then offer it as is,” Heisler says. “We felt like if anybody is going to offer it in its entirety, then it ought to be us.”
Media rights are a familiar concept to many athletic administrators. Schools and conferences have been selling radio and television broadcast rights of their games for years, often for substantial amounts of money. But in today’s world, media rights are increasingly affected by new media, such as Web sites, video on demand, podcasts, and wireless video. These emerging technologies are eager to offer consumers college sports programming and, as a result, everything from press conferences to historical game footage may soon be for sale.
After all, if there’s an audience out there for a certain type of programming, someone will find a way to provide it—usually for a fee. But who should receive the money? If you protect the rights to your events, there’s a good chance you will. If you don’t, you may be missing the boat.
TAKING CONTROL
Five years ago, no one could have imagined that press conferences would be such a source of contention. The concept of a press conference as programming people would watch from start to finish, especially days later, was completely off the radar. But times have changed. Now, schools and conferences need to look more closely at what media they may own and how they should control it.
“There’s true value to all of the ancillary and supplementary rights that have been developing over the past few years,” says Neal Pilson, President of Pilson Communications and former President of CBS Sports. “Initially, it was hard to put a number on video on demand or broadband streaming or clip rights. But now the marketplace is becoming more sophisticated, and I think it’s very important for athletic directors to understand that each of their ancillary rights have a separate value. And they need to understand what that value is before they make any decisions.
“The key is retaining the copyright where possible,” Pilson continues, “and retaining clip and highlight rights, broadband rights, and marketing and licensing rights that up to now either haven’t been exploited or were always packaged with the television rights. Because now there are separate values attached to those rights, folks at major schools have to educate themselves about what’s going on in the market and the best way to maximize their revenue potentials.”
Rich Routman, Director of Business Development for Collegiate Images, a licensing and rights clearing agency, concurs. “Every year, athletic departments are going to face new media decisions that impact the way they capture a game. The more opportunities a school has to identify this content and transmit it on multiple platforms, the more successful that athletic department is going to be,” he says. “It’s really important to keep up to speed with what’s going on. You want to be planning three, six, or even 12 months out in front.”
Even small schools that have rarely, if ever, seen a television crew at their games stand to benefit from emerging technologies. “Technology allows Division III schools to have coverage that was prohibitive five years ago,” Pilson says. “I think broadband streaming is the single most attractive and exciting development that’s coming to smaller schools. It offers the ability to have television coverage not just for athletic events, but also for graduations, convocations, and classroom situations.”
Athletic administrators should also understand that they have access to an audience others would love to reach. “Colleges have an attractive but difficult to reach demographic in their students—who research tells us watch less television and are less available for sales messages,” Pilson explains. “A lot of the big advertisers are going grassroots in an effort to reach this somewhat elusive sales target. So athletic directors at schools big and small would benefit from more active participation in the sales and technology marketplaces.”
How do schools then turn their ancillary products into revenue? “There’s no single proven method for approaching this,” Pilson says. “It varies by school, by conference, and maybe even by deal. The most significant factor is risk. Some schools may choose to work with an agency and take the guaranteed dollars, while others may decide to take a risk because there’s an opportunity to generate a lot more money by exploiting a particular right or asset on their own. The suggested approach is to evaluate all of your options, match value to the various rights you are licensing, then make a considered judgement on how best to exploit the rights for the benefit of your institution.”
PRESS CONFERENCES
Like other major college athletic programs, Notre Dame has a Web site with a mix of free content and features that are available only to paid subscribers. If the Web site can offer something other sites can’t, such as access to full, unedited press conferences, it obviously has the potential to increase its subscribers. That was part of the thinking behind Notre Dame’s decision to restrict usage of Coach Weiss’s press conferences.
However, Notre Dame does not want to limit the media’s ability to cover press conferences, nor does it want to sour relations with the press who cover it. The trick is defining where the fine line is between using a press conference for editorial purposes and commercial gain. “There are now so many different platforms out there that I think the onus falls on the institutions to determine what content we control,” Heisler says.
One-on-one interviews are not covered by Notre Dame’s new policy. Neither are reports that use selected pieces of press conference footage. “We’re certainly not saying that the media can’t cover the event,” Heisler says. “But we don’t think they should have the right to copy the full event—just like a television station doesn’t have the right to come here and record an entire football game and rebroadcast it.”
The policy was developed for football, but Heisler says it could apply to other sports as well. “What makes this area so difficult is that it’s changing so quickly,” he says. “I think our policy is really a work in progress as we figure out what makes sense to do.”
Syracuse University is considering an approach similar to Notre Dame’s after a local newspaper started posting men’s basketball post-game press conferences on its Web site in February. A local cable news channel operated by Time Warner Cable has been rebroadcasting press conferences in their entirety as well.
“We’re trying to figure out where to position ourselves in order to make sure we’re not discouraging the coverage of our events or press conference, while still protecting our rights and interests,” says Sue Edson, Director of Athletic Communications at Syracuse. “Whether it’s on television or a Web site, the replay of a press conference becomes programming instead of editorial use. If Time Warner plays it over and over again and has that segment sponsored by an advertiser, clearly Time Warner is profiting.
“So then the question becomes: Who owns the rights to these events?” she continues. “We now offer and archive them in their entirety on the subscription part of our Web site.”
Although no one has yet challenged Notre Dame’s new policy, according to one intellectual property attorney, the law in this area is conflicting and largely untested. Copyright holders have the right to control their properties, in this case a press conference, but news reporting does not violate copyright protection under the fair use doctrine.
“A court would have to look at the nature of the rebroadcast and determine whether it was commercial in nature or simply transmitting the news—it’s essentially a judgement call,” says Paul Rapp, Professor of Art and Entertainment Law at Albany Law School. “Does the college have the fundamental right to protect these things as a matter of copyright law? I think it probably does. If somebody wants to reuse it in total, do they have a fair-use right to do so? It’s a very interesting question, and I can’t tell you how it would turn out.”
Rapp says there are steps a school can take to buttress its claims to ownership of press conferences. “One practical solution would be to have a single media feed with one camera that all media outlets share, much like what happens for Congressional and presidential press conferences,” he says. “The school can wrap that with a copyright notice and statement that says the rebroadcast of the press conference in its entirety is prohibited. That would at least send a signal to anyone who acquires the entire press conference that the school believes it has the right to restrict its use.”
To make sure media personnel know and understand the restrictions, Routman offers a two-step process to staking your rights. “Step one is having policies and procedures in place to protect yourself,” he says. “That might mean displaying signage during a press conference that states anything captured there is limited to editorial use and any other use requires prior written consent from the institution. The second step is actually having every individual present at the press conference sign credential-use conditions, which state that they may cover the event solely for news purposes and any commercial exploitation of the content would require prior written consent from the university.”
But not everyone is concerned about others using their press conferences as programming. The University of Texas is at the forefront of exploiting new media platforms, offering an extensive array of programming—including press conferences—on TexasSports.TV, which offers streaming video over the Web, and BEVOD, a local video on demand service that allows local cable subscribers to watch Longhorns programming whenever they’d like to access it. Despite their own programming operations, Texas administrators say they have no plans to prevent others from using press conference footage in its entirety.
“Every television station that comes to [Head Football Coach] Mack Brown’s Monday press conference can put that on their site and drive traffic, but given the astronomical traffic numbers we experience on our Web site, we feel people are still coming to our site to get their Longhorns sports fix,” says Christine Plonsky, Director of Women’s Athletics and Men’s and Women’s Athletics External Services at the University of Texas. “Besides, even before video press conference footage was available, people were posting complete transcripts of press conferences, so there have always been other ways for fans to get that information.”
WORKING WITH OTHERS
As schools enter the programming realm, they may find themselves not only looking to control the rights to their events, but also wanting access to media properties controlled by others. From using historical game and interview footage on a Web site to repackaging a game they’ve already sold the rights to, schools are finding themselves on both sides of the media rights fence.
For example, Syracuse was able to work with ESPN to stream video from some men’s basketball games that the network had the rights to but wasn’t broadcasting. “Our athletic director, Darryl Gross, was able to talk ESPN into letting us stream three men’s basketball games on the Web, and the response was phenomenal,” says Roger Springfield, SU’s Director of Multimedia and Video Operations. “Our conference has asked us what is on our wish list, and I told them we’d like to have the streaming rights to games they don’t televise. Schools are now becoming aware of how important streaming is and the value it has. Nobody really anticipated this when the old contracts were negotiated.
“I’d love to go a step further and say we also have the right to stream any game that’s regionally televised,” Springfield continues. “If it’s televised just in the Northeast on ESPN regional, then fans in California and Florida can’t see it, so we’d love to be able to stream it and bring it to them. And I don’t think we would take anything away from ESPN, because if someone has the choice of watching on either a full-size TV screen or a computer, they’re going to go with the television. But if they have no other choice, they’d gladly watch it on a computer screen.”
Texas had a similar agreement with ABC Sports when it broadcast the 2006 Rose Bowl. “We got permission from ABC to send our own crew out to do our own production of the Rose Bowl,” Plonsky says. “We took our video production and overlayed it with the radio audio then re-aired it on BEVOD and TexasSports.TV,” Plonsky says. “It was ABC’s game, but they granted us permission to do this because they understood what we were trying to do. As long as we were charging a subscriber fee to watch the production, they were comfortable with it.”
For games broadcast by CSTV and ESPN, Texas’s contract contains language that gives the university the right to rebroadcast the contests on TexasSports.TV and BEVOD. “The networks have been very cooperative and we’re thankful for that,” Plonsky says. “It provides more exposure for their particular program when it goes to a controlled-source customer who is able to watch their game at any time.”
What if you just want to use footage from one of your school’s televised games? “The traditional model of most relationships universities have with the major networks allow the school to use network footage for a weekly coach’s show and sometimes for end-of-the-year highlight videos,” Heisler says. “But as you get into some other projects, say a historical video about your whole program, you may have to ascertain who holds the rights to each piece of footage and go to them to negotiate use.”
And just because you have rights to use footage for one project doesn’t mean you can use it for anything you’d like. “We may produce a piece that we show at our football banquet that includes footage we obtain for free from a variety of entities,” Heisler says. “But we probably aren’t allowed to sell that video or even post it on our Web site without working through the rights.”
A NEW FRONTIER
When John Heisler started working at Notre Dame, the Internet was little more than a couple hundred computers interconnected through a network called ARPANET. When Sue Edson arrived at Syracuse, she didn’t have an e-mail address.
“One complication for us, and this is true at almost any college program, is that Web commerce is not our core business,” Heisler says. “New media has come about fairly recently, and we’re all trying to get our arms around it as we’re still directing media relations. In some ways, we’re trying to solve this in our spare time.”
Listening to others’ suggestions and exploring new ideas is key. For example, Texas has had success in generating revenue through its photography department by selling photos to fans and the media through a Web site. “We had an astute young man in our photo department who said they were going to exhaust themselves with all the photo requests they received because they were not set up to do mass fulfillment,” Plonsky explains. “He found companies to bid on the pictures, and we’ll make close to $100,000 a year on them. All we have to do is feed a Web site with digital images. They do the rest of the work and take a percentage.”
“Take a closer look at what’s happening in our business because there is a tremendous amount going on,” offers Pilson. “And so much of it can lead to increased revenue opportunities for your institution.”
SIDEBAR: Shooting Gallery
While streaming and downloaded video is the current battleground between editorial and commercial use of a school’s events, the conflict is not limited to the new frontiers of electronic broadcasts. Last fall, Syracuse University found itself trying to police use of photographs from its sporting events. Administrators feared that at times, photo coverage of its games crossed from editorial to commercial use, thus jeopardizing the eligibility of its athletes.
The photos in question were those posted as part of photographers’ portfolios on SportsShooter.com, a Web site for sports photographers. Although the site’s aim is to be a place for photographers to discuss their work, listing of a photographer’s information included a line indicating whether he or she was available for freelance work. This created the fear that photos were being used for a commercial purpose, which could make the athletes pictured ineligible under NCAA rules.
The school asked that photos of its athletes be removed from the site and said it would no longer issue credentials to those who didn’t comply. Eventually, SportsShooter.com agreed to remove the references to freelance availability, satisfying the NCAA’s concern about commercial use.
Still, the episode served as an example of how technology has blurred the lines between commercial and editorial usage. “We haven’t had any language addressing this issue in the past, but evolution of the way information is used has made us look at adding some,” says Sue Edson, Director of Athletic Communications at Syracuse. “Before, we worked under the premise that the media were there to take photos for editorial purposes and not commercial use. I’d like to think the media are still there to serve an editorial purpose, but it’s clear that some people may also have some commercial interests in mind. I’m not saying that’s why they come to shoot the game, but it can be a result.”
SIDEBAR: RAIDING THE VAULTS
When the University of Texas was looking for programming for its TexasSports.TV and BEVOD video on demand service, it knew it was sitting on a gold mine of historical footage, including old game film and coaches’ TV shows. But it didn’t know how to get the material from storage to screen.
The videos, mostly old Southwest Conference games broadcast by a variety of networks, were stored in a Houston warehouse. With the Southwest Conference disbanding in 1996, it was unclear who controlled the rights to the material and what Texas could do with it. With the help of Collegiate Images, the film was digitized and usage rights were obtained.
“The old tapes were just sitting and gathering dust, ready to rot,” says Christine Plonsky, Director of Women’s Athletics and Men’s and Women’s Athletics External Services at the University of Texas. “CI has done a great job acquiring the rights from the networks, and we’ve been able to digitize these tapes and get them out in the universe again for us to use as well as others. We are learning to monetize very valuable assets.”
And now Plonsky is on the search for the Longhorns’ holy grail. “I can’t tell you how much time I’ve spent trying to find the vault in this city that contains the old Darrell Royal coach’s shows,” she says. “Before I leave this earth I’m going to find those tapes. Somebody has them and has forgotten all about them, but the day we find those we’re going to have some fun with them on TexasSports.TV and BEVOD.”