Music Publishers Call ‘Foul’ on Sports Teams and Leagues — Again

NBA, AHL, MLS teams allegedly infringed on copyrighted recordings, mostly on social media

Sports and music have been a couple that has grown ever closer over the past few decades. However, like many couples, they have often ended up in lawyers’ offices.

In July, 14 NBA teams — including the Atlanta Hawks, Miami Heat, New York Knicks, Philadelphia 76ers, and Portland Trail Blazers — were sued for copyright infringement by music publishers, including Kobalt Music Publishing and Artist Publishing Group.

The lawsuits allege that the NBA teams used copyrighted music in social-media videos and on their official NBA websites without the copyright owner’s permission. The music was used to promote team activities and products and to increase viewership and engage fans. Among the songs used in the videos are “Don’t Start Now” by Dua Lipa (posted to the Knicks’ TikTok account), “One Dance” by Drake (the Minnesota Timberwolves’ Instagram and Twitter accounts), and “Party in the U.S.A.” by Miley Cyrus (the Trail Blazers’ website). Other artists whose intellectual property (IP) was allegedly infringed on include Jay-Z, Cardi B, OutKast, Migos, Jason Derulo, Nicki Minaj, Austin Mahone, Busta Rhymes, Migos, and Pitbull.

The plaintiffs in the NBA teams suits include Kobalt Music Publishing America; Artist Publishing Group; MXM Music; and Prescription Songs. Many of the videos cited are no longer available.

APM Music Sues AHL and Others

More recently, on Sept. 12, APM Music filed suit against the American Hockey League (AHL) for alleged “rampant” copyright infringement of music on its teams’ social-media posts. Also named as defendants in the lawsuit, which was filed in California, were companies that operate nine teams: Utica Comets, Hershey Bears, Ontario Reign, Syracuse Crunch, Tucson Roadrunners, Colorado Eagles, Cleveland Monsters, Rockford IceHogs, and Belleville Senators.

In court documents, APM said that it had repeatedly contacted the AHL regarding the recordings but the league has refused to obtain proper licenses or admit wrongdoing. APM Music listed more than 100 examples of its music’s allegedly being used by the AHL and teams without permission, including two instrumentals used to score videos: “Stonewash and Sodas” by Tom Huxley and Alex Johnson and “Gleaming Shores” by George Stephenson.

APM, which is jointly owned by Sony Music Publishing and Universal Music publishing (neither of which is named as a plaintiff), has taken a lead position in providing original production music for teams and leagues, including MLB and the NHL, as well as helping those teams and leagues manage their music-copyright uses.

Though unable to speak to the ongoing litigation, APM VP, Sports Entertainment, Matthew Gutknecht does note the benefit of the company’s licensing arrangements with MLB, the NHL, and, most recently, the NWSL, which concluded this year: “These league-wide deals have been so fantastic,” he says, “because not only does it help increase the creative resources for [them] but it helps protect the team and the leagues, and the league from the teams.”

He adds that APM has a current initiative — “refresher courses, so to speak” — aimed at both professional and college teams, and the leagues they work with, to explain copyright regulations and to underscore the resources around that. “Making sure everyone is aware of the resources that they have [with us], whether it’s on the service side or the music side or the legal or the tech side.”

Statutory Damages

Each NBA team was named in a separate complaint, but the complaints made the same allegations. Each team is being sued for three separate causes of action for copyright infringement: direct copyright infringement, alleging that the teams used certain songs without getting a license from the respective publisher; contributory copyright infringement, alleging that the defendants knowingly contributed to and participated in the distribution of these videos by third parties; and vicarious copyright infringement, seeking to impose secondary liability and holding the teams accountable for further infringements by third parties.

Each case is seeking up to $150,000 in statutory damages for each infringement, return of profits received, an injunction against further infringement, and attorney’s fees. Given the scale of the alleged breaches, each team faces potential liability in the millions of dollars.

Kobalt’s complaint underscores the fact that the teams and leagues vigorously pursue protection of their own IP (most sports broadcasts are preceded by a disclaimer that the content is owned by the league), the broadcast rights to which they have collectively paid billions of dollars, while “knowingly and willfully infringing on the intellectual-property rights of the plaintiffs.”

More Streaming, More Litigation

This type of litigation has increased in recent years as the number of streaming outlets around sports has proliferated, and APM has been involved in some of them. In 2013, for instance, the company sued several MLS teams and other defendants for copyright infringement in California. The lawsuit — which has been settled, although terms have not been disclosed —accused the defendants of using the plaintiff’s copyrighted musical compositions on their social-media platforms to promote their commercial activities without authorization.

In the past, teams and leagues have asserted that their use of copyrighted music on social media and other media outlets constitutes “fair use,” a legal doctrine that allows use for such applications as criticism, commentary, and legitimate news reporting. That defense remains under debate in the U.S.; however, a UK court case in 2016 found that the uploading of video clips (including embedded audio and/or music) at the heart of the case was not considered to be for the purpose of reporting current events but rather “merely” to share the video clips with other users.

The issue of unlicensed uses of copyrighted music extends to the sport of politics. Presidential candidate Donald Trump has faced several copyright lawsuits over his campaign’s use of music during rallies and in videos. In one this year, a U.S. District Court judge ordered the former president to stop using the song “Hold On, I’m Coming” after a suit filed by the estate of Isaac Hayes, the song’s co-writer, argued that use of the song in rallies and in videos of past rallies was infringement.

Sports and music may be spending more time in the lawyers’ offices, but given the depth of the connection, don’t expect a divorce anytime soon.