Column: Inside the First Amendment, by Gene Polincinski

Who owns the news?

The glib answer is “no one.” But of course, the full answer is more complicated than that.

Famously, news is “who, what, when, where and why” — the “five Ws.” That mantra was drilled into the minds of generations of journalists, the essentials around which a news report is constructed.

Once past those basic facts, the complexity of the ownership issue begins.

News operations claim ownership of their reports — individual items as well as the collections that make up newspapers, broadcasts and online sites.

Ownership can relate to a particular account of news, the arrangement of words, the photos, videos or sounds of events — as in television or radio broadcasts of sports games, where a station or network pays a rights fee to “own” the event.

Ownership also might be linked to a particular means of determining the news, as when a court held some years ago that the PGA owns the “news” as reported in its unique method of tracking where every golfer in a tournament stands at any particular moment in the competition.

A system has grown up over centuries, in copyright law, to determine who owns such “news” reports — with evolving legal definitions over time of what can be owned, for how long, and by whom.

Yet another evolution — involving the Internet and the pervasive presence of mobile devices with cameras — may well be spurred by a fan’s cell phone-video of the horrific crash at a preliminary race in this year’s Daytona 500.

The controversy involves video taken by a fan seated near the spot where debris — including a wheel — dropped into spectator seats as cars collided. A fan posted the video on YouTube. But it was taken down for a time after NASCAR brought a copyright claim under a law that effectively requires the site host to take down first and review later. As it happens, YouTube later determined it saw no copyright violation and restored the video to public view.

The incident presents this question: Who owns an account of unexpected “news” (the crash) that occurs during planned “news” (the race).

In an interview with The Washington Post’s media blogger Erik Wemple, NASCAR Vice President of Digital Media Marc Jenkins said “This was never a copyright issue for us. We blocked it out of respect for those injured. What we saw was that it appeared someone was injured by the tire and it was unclear at the time what the status of the fan was.”

Still, news reports say that every NASCAR ticket contains a small-print admonition that it owns any video, audio or data account of its races. And it was on that claim that NASCAR employed the take-down process to accomplish its stated humanitarian goal.

There’s little question of the ownership of scripted, planned events where there are tickets — from Broadway plays to professional wrestling events — where the outcome is set in advance. The claim would seem less solid the closer the issue of ownership moves to the undetermined, unplanned process and outcome of an event — a news account of how a game was played, or a fan’s visual record of the winners or losers in a car race.

And what if there’s a disturbance during a scripted play? Does the playwright or theater “own,” say, a video record of a heckler’s outburst? What if a real fight breaks out during a staged fight at the wrestling “match?” Is that part of the show?

Or is it just news, with the element of serendipity putting not only the “five W’s” but the reports that surround them, in whatever technological form, firmly in the public domain?

A free press unrestrained by government, but hemmed in privately by those who would claim ownership of such unplanned occurrences, clearly is not really free to report all of the news as fully as it might.

At one time, the issue might have stopped with an old observation that the free press “belongs to the man who owns one,” as in a printing press.

But toss in the added element that we’re all now “reporters” and can inexpensively post the news to the entire world with a few keystroke — and suddenly, the real news is that the idea of who owns the news is changing yet again.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. Email: gpolicinski@fac.org.