Music Awards Dispute Shows Dilemma of Photo Coverage of Concerts and Other Events
Published November 2020
In-mid November, the Associated Press declined to cover the Country Music Association Awards after the organizers attempted to place severe limits on the photos that the wire service could take and distribute of the event.
An AP photographer was not allowed into the awards event because of coronavirus limitations. So the CMA suggested that the AP license photos taken by CMA photographers. But the AP refused, since licensing normally involves a fee (which the CMA said would be waived) and because then the CMA, not the AP, would determine what was photographed and which photos would be available for licensing.
The AP then proposed that it take screenshots of television coverage of the event, as it has for other awards shows during the coronavirus pandemic. But the CMA wanted to bar the AP from taking or distributing any photos showing the socially-distanced audience of nominees of their guests, who were all unmasked.
The AP refused this condition, with AP Global Entertainment and Lifestyles Editor Anthony McCartney saying that “[b]y denying independent news organizations, including AP, access to take images of a publicly broadcast event, the CMA Awards is infringing upon the news media’s ability to tell the full story of the event.”
This is just the most recent example of an organization seeking to limit or control media coverage of a newsworthy events.
This has been a particular issue in sports. American courts have consistently held that “purposive” athletic events such as football and basketball games—with scores determined by objective measures such as touchdowns or goals—are not copyrightable. “Aesthetic” sports events that include artistic elements, such as ice skating and synchronized swimming, on the other hand, are copyrightable.
Similarly, details of purposive sports matches, such as scores and descriptions of the plays and action on the field, are also not copyrightable. But broadcasts of “purposive” athletic events are copyrightable as programs, as long as they are simultaneously recorded.
But that has not stopped several professional and school sports leagues from attempting to limit or control photography and videography of their events, including limits such as what can be photographed, from where, what equipment can be used and how the resulting images can be used. (The NFL even restricts its own teams’ video posts on social media.)
Numerous performers have taken the same approach towards coverage of their concerts and other events. Some events, leagues and venues even ban photography entirely.
In privately-owned venues, these limits are often imposed as a condition of attending the event, with press credentials or general admission tickets that include restrictions on professional audio and video coverage. This imposes the restrictions as a matter of contract, rather than copyright. And under property laws those who violate the conditions of their admission to a venue can be sued—and even arrested—for trespassing.
Musical and non-sports performers actually have more ability to impose restrictions than in sports: unlike “purposive” athletic events, musical and dramatic performances are clearly protected by copyright, regardless of whether they are recorded or not. And there are also usually copyrights in the underlying songs (including music and lyrics) or script that is being performed.
Publicly-owned venues, on the other hand, can impose some restrictions, but cannot legally ban photography entirely during events.
In short, the law provides a number of ways for venues and performers to place limitations on photo coverage of their events. It is also in their interest to allow some photos for publicity and brand-building reasons, which ultimately results in increased sales of their music or tickets to their events. For the media, the challenge is photographing events while dealing with these restrictions, and reminding artists and venues of the benefits of allowing such coverage.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not of his employers.