By Amanda Wright
In December 2014, Sisu Project (USATF New England Association Club Number 274) sent its first full squad of open men and women to the USATF Club Cross Country Nationals in Bethlehem, PA. After the event, Sisu produced a highlight video of our club which documented the experience of attending Club Cross Country Nationals. The video also included a total of five minutes of race footage of our own runners and a few other runners in our association participating in the actual event. Not only did this video chronicle a nine-year goal of the Sisu Project (to attend club xc nationals), but it also spread the word to other runners who might gain an interest in attending USATF Club National events in years to come. Anyone who has ever attended USATF Club Outdoor Track & Field Nationals knows USATF could use all the help it can get in promoting the non-elite club aspect of our sport.
Recently, two months after this event could be considered newsworthy, the USATF forced YouTube.com to stop hosting the Sisu video due to a claim of “Copyright Infringement.” When I first discovered the YouTube notice in Sisu’s YouTube account it said “Work allegedly infringed Video not from YouTube: “Masters Men’s Race Highlights – USATF Club Cross Country Championships 2014.” Having taught some classes on Copyright law, I thought based on the explanation provided, USATF mistakenly identified Master’s Race footage in the video as their own and was claiming that this was not an original creative work by the Sisu Project. So I kindly wrote and phoned Sarah Austin, Legal Associate at the National Office (whose name was displayed as the person responsible for removing the video from YouTube.com) to clarify that this was our own original work and ask that USATF retract its Copyright Infringement claim.
Two unexpected things happened next.
The first wave of shock came rolling in when I actually received a prompt return phone call from Norman Wain, who identified himself as General Counsel to USATF. The next was Norm’s explanation that USATF was not claiming that our video was not our own original work, but that USATF owns all the sole rights to display event media publicly and that part of the legal team’s job description, as a result of a new initiative to protect USATF’s intellectual property, is to remove this media when they see it displayed in public – a great use of member dues dollars no doubt. My surprise stems from the fact that this policy, as enforced by General Counsel and Legal Associates, is enforced against dues paying member Clubs at the Club and non-elite level as equally, or arguably more harshly, than it is against other competing media outlets at the professional and non-professional level.
Despite Norm’s statement that he wanted us to know that “our club was not being singled out” and “we process so many of these on a daily basis we couldn’t reach out to you [personally],” non-USATF media coverage of the event still remains on YouTube.com and all over the internet. The remaining Youtube.com coverage is more potentially detrimental to USATF than our coverage because the remaining coverage is actual coverage of the event, not a club team’s highlight video marketing their own club. Don’t believe me? Check out Jared’s video and this video from Salmini Sports film. Additionally, I noticed several professional photographers at the meet – some no doubt endorsed by USATF – as you can see, Michael Scott is featured on USATF’s website for the meet. While other rogue photographers have equally professional photos currently on display for public view – some perhaps profiting from their work and others not. Here is Leigh Valley Road Runners photos of the event on their public album available on Facebook (though the link to their smugmug page is suspiciously broken). Here are some others by Ryan Hulvat posted on Runner’s World. The purpose of pointing these inequities out is not to shut down more media or call out others producing media, but to demonstrate that if our dues money is going to pay USATF legal associates to perform the task of removing non-USATF media coverage of an event, they clearly are doing a poor job of it and a poor job of enforcing the policy equitably among USATF constituents.
Because Sisu uses the services of a pseudo-lawyer (as I call myself – though I am a member of the NY State Bar), the Sisu Project did do a prior check of USATF’s broadcasting and media policy to try to find a policy preventing the public display of prerecorded media of their events, but our efforts to find such a policy in the months leading up to the event were futile. I explained to General Counsel Norm that I could only find USATF’s Broadcasting Policy which prevents broadcasting or live airing of USATF Track & Field Events, but nothing about event photography or prerecording and how that can be disseminated by member clubs after the events newsworthiness has passed. I expressed to Norm that as a member club who pays dues to USATF, we are requesting these rules in writing and I sent a follow-up e-mail for this request which remains unanswered at this time. How can we adequately market what our member clubs do if we do not know what information and in what form we can disseminate information?
I made the mistake of making the analogy to Norm that “this ‘policy’ being enforced at the club level was the equivalent of stopping someone from taking a selfie at a New York Knicks game.” Norm proceeded to expand on my analogy and liken USATF to the NFL or NBA and say these organizations “would let you take a selfie, but would never let you record and post to YouTube.com parts of the game.” Nice try on General Counsel’s part to distinguish away my analogy – a basic first year law school skill – except for the fact that his statement is totally false; just search via YouTube.com for people recording with their phones highlights of the Super Bowl and posting those to YouTube.com. Many of these videos are recordings of the person’s experience at the game, but they also include clips of plays at the game. Of course the NFL does not care to remove these meaningless videos because they are not what we call “newsworthy.” These organizations also recognize the relevant new trends as to how individuals share their experience in today’s new world.
In a recent Runners World article by Nick Weldon, the author points out that an argument by USATF is that USATF, “would love to be the NBA and be so ubiquitous that we can afford to have our intellectual property being used by anyone and everyone…the NBA is in a financial position where they can afford that. We are trying to build assets. And to build value.” However, what USATF fails to realize is what the NFL and NBA seeks to protect about their events is their newsworthiness. USATF has time and again failed to recognize that in order for a sport or event to gain value and relevance among a large audience, it has to have newsworthiness. Organizations like the NFL and NBA need to protect their right to be the first and only disseminators of the event (or at least have access to sell the rights of that dissemination for millions of dollars to television networks). The irony is that USATF could not even manage to post to their rudimentary website the official Master’s Club score from this very event for days after the event occurred. Master’s runners sat by their computers waiting and waiting for the “official results” to be tabulated. Imagine waiting that long for any other decision on the result of a sports competition? But that’s USATF going great lengths to protect a tarnished brand of little-to-no value.
Returning to the points made in the Runners World’s article, it’s difficult to compare the USATF to the NBA because the USATF is a governing body – not a professional sports league – and the large portion of its members are not elite athletes. I agree with these sentiments and although Runners World said it was generally critics who were at fault for comparing the USATF to the NBA, I criticize the USATF for trying to operate like a professional sports organization and “protect their brand” when USATF is also a governing body of a largely volunteer, non-professional base. USATF’s application of this new policy involving fervent protection of their media and their brand is ludicrous when applied in this way to a nonprofit USATF member club.
When I explained to Norm that the video (which he did not even view) was simply a highlight video of our own team and that we were not covering the news of the meet (ie: we did not cover the BAA or Nike Oregon Project or Adidas, ect or interview the winners), so we would ask that it can be republished, he told me, “well you still cannot film a blowout professional sports game and air it publically.” Yes, “that’s true, Norm,” I replied, “except the people getting blown out in this ‘game’ are not professionals.” Norm said, “Well, you do have to qualify to get into the meet.” Again, another great attempt at a first year law school skill – except again that statement is totally false. Any dues paying member who is old enough (14 for women; 16 for men) and who is a United States citizen can enter this meet – just like anyone can become a USATF member by paying a $30.00 annual fee.
Our club team is not made up of professional athletes, but doctors and lawyers and teachers and nurses and public sector workers like many other USATF members – we want USATF to know this. We work in the running industry or go to school full time and wait tables to make ends meet. USATF does not help and will never help promote nonprofit, grassroots member clubs such as ourselves that work in our community to volunteer and fundraise for other causes in the way that the NBA or the NFL helps the Knicks and the Patriots respectively market and sell tickets. Don’t believe me? Here are the videos USATF did produce from the event available at USATF.TV. While the finishing footage waits for most runners to finish, there is no actual coverage of the Sisu Project or other similarly situated teams. No USATF news of the event mentions Sisu or other similar teams and rightfully so, we did finish 32 out of 38 clubs for the women, but what about the other club teams who finished mid-pack or close to the front, but not in the top ten? If USATF will not cover that news, why not let us promote our brand and what we stand for ourselves? The message USATF is sending sounds like this, “When we do cover an event, we will not market your club teams and you can’t use your own race footage of our race to market your team or highlight your team – thus, there will be no highlight of your team from this event. To the public and everyone else not present, it will basically appear that you did not even participate.” I can only draw two conclusions from this either a.) the person or person(s) responsible for this policy and its enforcement did not consider how this would affect club teams’ abilities to market themselves or b.) the USATF wants to intentionally kill the club aspect of our sport by stifling our ability to market ourselves because clearly they are not going to do our marketing for us. And we are not asking USATF to cover our media – that’s impossible for them to do because well as delusional I am about the Sisu Project’s greatness maybe at the National Club level clubs like Sisu “don’t matter” and don’t need coverage from USATF, but don’t we matter to our home association? Are we not at least a little entitled to bring that news and media back to the New England region where our women’s team placed third in the Grand Prix Road Racing series just two years ago?
It’s clear that the kind of marketing the NBA does to help the Knicks sell tickets is not at all on par with what USATF can do to help build the club scene up or at a minimum sustain the club scene that we have. How the NBA operates is not relevant or relatable to how we want the USATF to govern our sport at the club and non-professional level; this kind of management (or should I say mismanagement) will not meet the needs of USATF’s membership. USATF member clubs, even other professional clubs, are forced to do all their own marketing. Well all that is true unless you are Nike. USATF should not liken itself to the NBA or the NFL because they are not akin to these organizations; USATF serves a different constituency.
The Runners World’s article I mentioned earlier points out that CEO “Siegel has advocated a fierce new protection of the USATF’s brand, particularly photos and video from its meets.” These pursuits have led to other conflicts with Oiselle over Instagram posts made in May and June and video snippets Oiselle posted from the finishes of two races at the outdoor national championships. USATF Spokeswomen Geer was quoted in the article saying, “Using USATF footage or footage of USATF events is another violation of its intellectual property rights.” We agree with the author of the Runner’s World article that actions such as these against Oiselle and actions such as these against a local New England club do not make the USATF look like a well-managed organization – it makes the leadership seem outdated and disconnected with its membership. USATF is supposed to govern “our sport” and professional athletes are only a small portion of the constituency.
Sisu intended to use our marketing at Club National Events to help promote our brand and garnish more members which only means more dues paying members for the USATF. In fact, the only reason the USATF found our video is because a new local sponsor of our team tweeted the link to the video – which was exactly the kind of positive attention Sisu had hoped to gain from that marketing and it is exactly the kind of positive attention USATF will prevent local non-professional clubs from yielding in the future. For nine years Sisu has believed in the power of positivity and enthusiasm for our sport and our media mastery has allowed us to take spreading this enthusiasm to the next level. As Sisu Club President, Matthew Germain, says, “In this day and age all media is now displayed publicly. If the USATF wants to fight its own members on this, they are in for a long fight entrenched in archaic views of how the world now disseminates information.” Runner’s World quoted former CEO, Doug Logan: “There is a schizophrenic architecture to USATF that is meant to serve both a volunteer membership and a professional sport that causes a lot of wacky behavior.” We could not agree more. USATF’s application of this policy at the club level and its application of it to us as member clubs stifles our ability to grow our sport, our hobby, and our passion. It blocks us from the ability to be noticed by small local sponsors and it stops us from spreading the word to collegiate athletes that “completive running does not end after college.” We are not professionals. USATF will never help meet the needs of local club or local association’s ability to market operating in this manner. We are clearly distinguishable from the NBA and NFL and member clubs and local associations need to take back the ability to market themselves and remind USATF that they are a governing body, governing many non-professional members – not a professional sports organization. They cannot and should not hide behind the guise of Intellectual Property law when making these decisions – just because you can, does not mean you should or that it is good for our sport.
Thus, when USATF moves forward and makes decisions to fiercely protect their intellectual property rights, they must account for the non-professional constituency and listen to the voice of the membership. This application of their authority affects our local clubs, our association, our athletes that maintain active blogs to buildup local support systems, our photographers that come to events to photograph our runners; this affects us all. If you take nothing else away from this article you should know that USATF’s consideration for its dues paying non-professional members in enforcing new policies and initiatives is conspicuous by its total absence in everything they do.
If you want to understand the kind of video USATF’s legal team found it necessary to remove visit www.sisuproject.com and click on “Free Sisu” in the menu – type in the password “free sisu” and you will be able to view our video because we are now hosting it through our own site (at least until we receive a cease-and-desist letter). We hope you agree that these action are an unfortunate use of USATF time and money when there is much more that they could be doing for our sport and we hope you will stand with us in telling USATF this action and those like it are unwarranted, unprofessional, and out of touch, especially when applied to its own non-professional member clubs.