Past Columns

The “jubilation shot” by David Banks (2004)

Courtesy of the Southtown Star

Shooting for Dollars

The fight over photo rights to high school sporting events involves more than the First Amendment.

By Michael Miner

February 7, 2008

It was a sticky June afternoon in East Peoria, and photographer David Banks was shoot­ing the 2004 girls class AA state softball cham­pi­onship. Banks worked for the Daily South­town then, and Lockport Township High School was playing for the title. He was the only press photographer there.

Lockport came from six runs down to beat Oak Park 8-6, and Banks headed onto the field to take the “jubilation shot”—the photo of ecstatic teenagers hugging and tumbling and screaming. It’s the shot that goes on page one of tomorrow’s paper and into the photo albums of every player on the team.

But a volunteer from the Illinois High School Association blocked Banks’s way at third base. “She knew who I was and she said, ‘I can’t let you out,’” he says. “I asked why. She said, ‘This is my instruc­tion.’” Banks looked around. He spotted the photographer from Visual Image Photo­graphy, the firm under contract with the IHSA to take pictures of its major events, heading for the field from the first base side. Banks trotted after him and got his picture.

Banks also calls the jubilation shot the “money shot,” and that’s not just a metaphor. Papers point out that for 100 years they’ve sold copies of their pictures for a nominal rate to readers seeking mementos. Now a lot of papers have digitized the process—their photographers post pictures and readers order them online. An outside company that handled the order and made the print took a cut and Banks and the Southtown split the balance. Banks says his yearly take was something under $2,000.

The revenue stream is pretty small—it didn’t come close to sparing the Southtown its recent drastic economies, merging with the Star papers and laying off a lot of people, Banks included. But visit the Web site of what’s now the SouthtownStar and you’ll see the paper means business. “Welcome to Southland Photo­Shoppe,” it says. “Your shopping choices range from traditional prints to T-shirts, mugs, computer mouse pads and other items on which our photos are imprinted.” A simple eight-by-ten is $25.

This commerce rubs the IHSA the wrong way. If the sale of pictures is little more than a public service, the IHSA wonders why the papers charge anything at all. “We don’t have a problem with you giving them away or doing photo galleries online,” Anthony Holman, assistant executive director of the IHSA, told Bloomington’s Pantagraph last November. This was just after the state foot­ball finals, when the IHSA refused side­line access to photographers from papers that sold a lot of pictures.

That prohibition would have poisoned the relationship between the IHSA and the state’s newspapers if it hadn’t already turned venomous. In fact, earlier that month the Illinois Press Association sued the IHSA to get full access to those football games, but a judge refused to issue a restraining order guaranteeing it. The IHSA countersued in December. With the case still in court, late last month state representative Joseph Lyons, a Chicago Democrat, introduced a bill intended to make the IHSA’s position illegal.

The beneficiary of the IHSA campaign is VIP, a Wisconsin-based company that’s been under contract with the agency since 2001. The contract gives VIP access in exchange for services—it makes its money by selling photos to the public. In some of the four other midwestern states where VIP operates it shares 10 to 20 percent of its profit with the agency that hired it. The IHSA doesn’t take a cut; but, says executive director Marty Hickman, it saves the $35,000 to $40,000 it spent on photographers each year before VIP took on the franchise.

“They’re trying to protect us,” says Thomas Hayes, president and CEO of VIP, “because the services we provide them are very valuable to the organization. . . . We go down to their headquarters and photograph their staff and their board every year—we don’t bill them for that. It’s part of the contract. We photograph all the state finals in Illinois.” And not just the big ones—also the ones nobody but the kids’ schools and families care about.

The new competition hasn’t cut into Hayes’s revenues, but he sees the papers’ current photo sales as the “tip of the iceberg.” “It just doesn’t seem proper to me,” he said. He paused. “It doesn’t seem improper. I guess if I was a newspaper I’d want to sell my pictures too. But then you’d have to respect the fact that the organization that’s sponsoring this event has hired somebody to do that.”

But the papers don’t respect that fact. “I don’t think I’ve seen a single issue that has inflamed the passions of my members more than this one has,” says David Bennett, executive director of the Illinois Press Association. “Most see it as an example of a quasi-government agency trying to tell them how to run their product. This is unbelievable. Government can’t do this! That’s blatantly unconstitutional. There’s no backing down from this one now. The toothpaste is out of the tube.”

Last Saturday the state cheerleading championships were held in Bloomington. The Pantagraph carried two stories Sunday morning: one about the competition and the other about its photographer, Carlos Miranda. After refusing to sign an agreement forbidding him to sell reprints, he’d been forced to buy his own ticket and sit in the stands. Miranda took some pretty good pictures from there; they were up on the Pantagraph Web site Sunday, selling at $19.99 for an eight-by-ten.

The weekend before, the IHSA had staged the boys’ bowling championship in O’Fallon. Brian Hurley, the chief action photographer on Hayes’s staff, was there for VIP. He says nobody showed up to take pictures for the press. The chess finals are this weekend in Peoria. He’s not expecting the press at that event either. Girls’ bowling is this weekend in Rockford, and the debate and drama interpretation finals are coming up next month in Springfield. VIP will be at all of them, Hurley says, even though there’s no guarantee the revenues from selling pictures will even cover the costs. Being there is what VIP does for the IHSA. In return, the IHSA is now running interference for VIP at the big events where the money’s made.

Hayes tells me he simply can’t see how this is a First Amendment issue. But a free press isn’t always an attractive press, and it’s less free if it loses the freedom to cover whatever it wants any way it wants. In the name of the constitution, it guards its perquisites zealously, and I’m confident that few if any of the state’s editors would allow their photographers to sign the sort of agreement Miranda just refused to sign. By demanding such agreements, the IHSA is “stepping on some rather sacred toes,” in the view of Joseph Lyons, sponsor of the bill just introduced in the Illinois House. If the day comes when VIP pulls out and the IHSA has nobody to take pictures of the debates and chess matches, Lyons won’t feel sorry for it. “I don’t know too many high schools that don’t have photography clubs and stuff like that,” he says. “Badda bing, badda boom, you’re taking your own photos. I’m not buying those violets right now.”

Hickman responded to Lyons’s bill with a statement warning of its “far-reaching implications”—not just “reducing our services or passing on increased costs to our member schools while newspapers and other news media profit” but also possibly ending live TV coverage of the championship football and basketball games. “If we can’t control the dissemination of the footage of these games,” Hickman says, “I can’t imagine why a sponsor would want to pay for TV rights and have anybody else come in and film and broadcast the same thing they’re paying for.”

The fight’s over access, yet that word never appears in Lyons’s bill. It provides that “no public elementary or public secondary school” or association of schools “may infringe upon or attempt to regulate in any manner the dissemination of news or the use of visual images by the news media” of interscholastic competition. Hickman’s hopeful. “If we can 100 percent control access, the bill’s not that big a deal,” he says.

But when the IHSA controls media access to an event, surely it’s also affecting the dissemination of news of that event. So it seems that under Lyons’s bill the IHSA wouldn’t be able to control access—and neither would a grade school principal.

This issue’s been chewed over by sports photographers on listservs, and one observed about Lyons’s bill, “This is the kind of law that the backlash will be huge. Wait until principals find out that they are losing control over who can have access to their gyms.”

Which merely means that at this point Lyons’s bill is, like a lot of new legislation, incoherent. In the end it might settle the issue, but for now it’ll simply make it more confusing.   

For more see Michael Miner’s blog News Bites.

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