The rights landscape in college athletics is more perplexing than the triple-option play — and that’s before social-media applications like Twitter and Facebook enter the conversation. This season, fans are reporters, reporters are fans, and a photo collage for a personal blog can constitute copyright infringement. The nation’s toughest — and, recently, richest — athletics conference, the Southeastern Conference (SEC), attempted to get ahead of the curve this season by releasing a stringent (anti–social-media) policy but has since retraced its steps. The current version of that media policy targets the commercial use of game film, but the debate about where social media ends and copyright begins rages on.
Under the SEC Microscope
“Everything with the SEC seems magnified because there’s so much passion down there and there’s so much attention paid to it,” says Tom Odjakjian, associate commissioner of television and scheduling for the Big East Conference. “When they set out a policy or they send out a notice, it gets more attention.”
That much-scrutinized notice prohibits fans from distributing photographs or video of its games in real time for commercial use. Although the original policy was far stricter, the current version is aimed not at the casual fan posting a few photos to Facebook but at entrepreneurs who put those photos up for sale, copy the broadcast, or create their own highlight videos for commercial use.
But even for partners who do have rights to replay video content, there is a growing number of issues related to where and how they can use that footage.
“If a TV station shows highlights of a game on its news show, can they put it on their Website, too?” Odjakjian asks. “Can they put it on the Website if they simulcast the news on the Website or if they delay the news on a Website? Can they show excerpts on their Website?”
ESPN owns the copyright for the Big East’s content, but, during the conference’s latest negotiation with the network, the Big East retained the rights to use video content on its member schools’ Websites as well as on the conference site.
“Although we didn’t have the copyright, we were able to get what we needed, which was very important,” Odjakjian says. “But our contract doesn’t cover what the newspapers, news stations, or blogs can do or what trades they may make with other networks. That’s [ESPN’s] job to monitor and police, which is very difficult to do at the fan level. But, by at least setting some rules, you’ve got something to fall back on legally if you ever want to pursue it.”
In-Game Rights and Wrongs
During the game itself, it is not always clear who has the rights to capture what — and on what platform. In the pro ranks, the opposing teams are always playing league games, so they follow the same rule book when it comes to media policies. In college, if the road team and home team represent different conferences, the contracts can be written in direct opposition: the away team may owns its broadcast rights, but the home team may have sold its rights to a network. So who gets to own the video of that broadcast?
Even worse, many college-football-game contracts are written a decade before the game is played. Ten years ago, there was no such thing as Twitter or Facebook, so obviously those contracts have no provisions for social networking. If a team from the Big Ten, which owns the copyright for its home games, hosts a Big East team, whose rights are owned by ESPN? Who is in charge of what?
“The more you discuss this, all you come up with are questions instead of answers,” Odjakjian says, “and it gets more mind-boggling and takes more time.”
The Big East’s media contract has limited language relating to what the fans can and cannot do. “Rapidly refreshing photographs” is one item that is disallowed by the conference, but what exactly does that mean?
“They don’t want you to put up so many photos in order so quickly that it looks like video,” Odjakjian says. “If it looks like video because there are so many pictures moving so quickly, that becomes competition for people watching the broadcast. But what is ‘rapidly’? Do we need a lawyer to define what we mean by ‘rapidly’? There has to be a spirit of an agreement here.”
Still Debating After the Final Whistle
Although the value of video content may diminish at the conclusion of a game, it certainly does not die. Policies regarding after-market use of that content are written explicitly because ESPNU, CBS College, and other networks often re-air well-played games. If fans can watch the best plays for free on the local news, why would they tune in to a cable network?
Notes Odjakjian, “The rightsholder wants there to be some value to that re-air, too, so it’s not as if the value changes once the game is off of live TV.”
That raises the question of how many times — and how often — a local news channel can re-show that week’s highlights but certainly does not begin to provide an answer.
Behind the Technological Times
Rewriting every collegiate-game contract every time a new piece of social media is invented is far too large a commitment for conferences and networks to undertake, so they must find a way to create rules where they do not currently exist.
“It’s nearly impossible to write something that covers all the bases,” Odjakjian says. “[The SEC] is feeling their way here, and all the rest of the conferences are watching this closely. Some people will copy what the SEC does, and other people will tweak it. The fans have had a lot of freedom, and anything that they’ve had that they suddenly can’t have is going to upset them.”
On a conference-wide basis, the Pac-10 does not have a social-media policy — at least not yet.
“It’s an institutional decision on our campuses,” explains Jim Muldoon, Pac-10 associate commissioner for communications and football administration. “As we see a proliferation of new media, everyone is going to be wrestling with the questions that the SEC is wrestling with right now. We will start to look at it if any of our institutions request that we do so.”
The Myth of Cannibalization
“In sports, cannibalization is not a factor if you’re doing it the right way,” says Burke Magnus, SVP of college sports programming for ESPN. “We put four college-football games in primetime every Saturday night. Conventional wisdom a few years ago was that we wanted [our networks] to not compete against each other, but it didn’t take long to realize that you just brought more people under the tent and gave more options to the fan. We built a better mousetrap on that one, and I think we take the same approach now for all content, whether it’s online, mobile, or anywhere else.”
But isn’t it bad business for ESPN if fans follow stories on Twitter, rather than ESPN.com, where advertisers have paid for real estate? According to Magnus, as long as there are games to be played, all interest is good interest.
“We feel like the more fan interest there is in the sport, team, or game — whether that’s through digital or social networking — ultimately, they have to come back to what they really care about, which is the live game,” Magnus says. “If they’re tweeting about it, that’s all good for us. The mission of our company is to serve fans. I don’t think there is anything we would do intentionally to try to dampen that enthusiasm.”
Odjakjian agrees: “There is so much more on television than there ever used to be, but ultimately, that’s good because it all promotes our business. I think of how much harder my job is because there are so many more networks than there used to be, but that’s a good thing.”