The 49th Annual SLA Conference featured a panel titled “Copyright in the Digital Age,” moderated by Laura Warren, Senior Vice President and General Counsel for Chicago Fire FC. The panel included Summer Comstock, Associate General Counsel for the Arizona Diamondbacks, Eleanor Lackman, Partner at Mitchell Silberberg & Knupp LLP, and Shameeka Quallo, Vice President and General Counsel for the Washington Spirit.[1] Some of the modern issues they presented include:
Licensing Music for Social Media
The panelists addressed the complexities of using copyrighted music on social media platforms. They emphasized the need for proper licensing due to the high visibility of content on these platforms. They pointed out that copyright owners actively monitor social media for unauthorized use and can file takedown requests or initiate lawsuits against infringers.
To mitigate these risks, they suggested several strategies: using royalty-free music, obtaining permission directly from copyright owners, and utilizing the built-in music licensing options provided by social media platforms like Instagram and TikTok. They highlighted a recent example in May 2024, where Universal Music Group and TikTok announced a new licensing agreement that allows TikTok users to legally use music from Universal’s extensive catalog.[2]
Nevertheless, Brands and content creators should proactively seek permission for all third-party content used. In October 2023, Sony Music Entertainment sued Ofra Cosmetics in a Florida federal court, accusing the beauty brand of unauthorized use of Sony music in over 300 social media videos.[3] Sony argues that this misuse not only harms licensing revenue but also creates a false association between Sony, its artists, and Ofra. The lawsuit highlights the need for brands to ensure that any music used in their content, including influencer collaborations, is properly licensed. Just because music is available on social media does not mean it is free to use without permission.
Photography Issues
Quallo noted that the person who takes the photograph generally owns the copyright. Under 17 U.S.C. § 201(b), a work made for hire is defined in two primary ways: (i) prepared by an employee within the scope of employment, or (ii) specially ordered or commissioned for use in specific categories with a written agreement designating it as a work for hire. If the photographer is an independent contractor, they retain the copyright unless there is a written agreement specifying it as a work-for-hire in one of the nine categories.[4] Factors such as the provision of employee benefits and tax treatment are crucial in determining if a photographer is an employee.[5] As such, employers hiring photographers should clearly define the relationship and use written agreements to specify work-for-hire status when applicable.
- User-Generated Content
They also discussed the rise of user-generated content (UGC) and its implications for copyright law. They illustrated this with the 2024 case of the “Success Kid” meme, where the photo’s creator sued former U.S. Representative Steve King’s campaign for unauthorized use of the image in a fundraising appeal.[6] The jury found King’s campaign liable for copyright infringement, awarding statutory damages to the photo’s creator. This case underscored the importance of obtaining permissions before using UGC, even when it has become widely circulated as a meme. They emphasized legal diligence as brands must balance the desire for viral, quick content with the need for obtaining permissions.
- “Action Shot” Lawsuits & IP Risks for Athletes and Leagues
For famous athletes, this risk is very high for reposting photographs even when they are the subjects. Numerous lawsuits have arisen over the use of cropped versions of these images. In 2020, LeBron James faced a $150,000 copyright infringement lawsuit after posting a photo of himself on Facebook and Instagram without obtaining permission from Steve Mitchell, a professional photojournalist.[7] James’s posting of the cropped photo was deemed a reproduction and public display without Mitchell’s consent, violating Mitchell’s exclusive copyright. Although James has a right of publicity over his likeness, this does not override Mitchell’s copyright.
In 2019, a lawsuit concerning a photo of Tom Brady, originally posted on Snapchat by photographer Justin Goldman, was settled.[8] The photo was later shared on Twitter through embedded tweets, leading Goldman to sue the news organizations that used Twitter’s embedding feature. Initially, the judge ruled that embedding the photo constituted displaying the work.[9]
In 2020, Aaron Sprecher, an independent contributor to The Associated Press, sued Deshaun Watson for copyright infringement after Watson posted at least three of Sprecher’s photographs.[10] Sprecher had taken two of the photos before a 2017 game between the Texans and the Bengals: one of Watson in a suit with headphones and another of Watson in uniform. These images garnered nearly 150,000 likes on Instagram. Sprecher also took a third photo at a Pro Bowl practice, showing Watson signing autographs. The lawsuit arose from Watson’s posting without permission, alleging he never obtained a license or permission from Sprecher, the NFL, the Associated Press, or the Houston Texans. These case studies highlight the importance of obtaining permission before posting, as this area is highly litigious.
Nevertheless, when a league enforces its intellectual property, it may be seen as a commercial benefit or fan policing. In fiscal year 2022, the National Intellectual Property Rights Coordination Center made over 22,000 seizures of counterfeit sports items, valued at approximately $4 billion, from both online and physical sources.[11] This effort is part of Operation Team Player, which involves U.S. sports leagues working to prevent counterfeit merchandise from reaching fans during major events. The initiative aims to protect fans by encouraging them to buy from reputable sources, avoid suspicious deals, and be cautious with online transactions.
However, the NFL has faced criticism for its IP enforcement practices against fans. In 2006, the league sent a cease-and-desist letter to an Indiana church planning a Super Bowl party, citing copyright infringement for showing the game on a screen larger than fifty-five inches.[12] While legally justified, this action drew media backlash for appearing to enforce IP rights more harshly against community events and policing fans, compared to bars and restaurants. This underscores the need for businesses to balance stakeholder considerations when enforcing intellectual property rights.
Best Practices for IP and Social Media Management
To effectively manage IP and social media, brands should begin by securing a comprehensive professional license that addresses all usage scenarios. For instance, Comstock acknowledged a scenario where their license covered music use for ballpark activities but did not extend to social media. Consequently, they had to mute postings of walk-up songs and music played after home runs before sharing those highlights online despite obtained the use within the ballpark. So, business should ensure that contracts clearly outline IP usage terms, including detailed provisions for social media rights and obligations. Clear contracts can also resolve authorship issues, particularly for work-for-hire photographs, thus preventing copyright disputes.
Brands should actively manage and monitor social media accounts to ensure compliance with IP agreements. Contracts may expire or lapse, meaning that old posts could become non-compliant and face takedown litigation. To address this, businesses should include terms in contracts for managing content after the agreement ends—either by removing posts or specifying conditions for retaining or deleting content. Lastly, brands should educate staff annually on IP regulations and best practices to prevent unintentional breaches.
Katelyn Kohler is a rising 3L at Suffolk University in Boston, specializing in Sports & Entertainment, Labor & Employment, and Intellectual Property Law.
[1] Agenda, 2024 Annual Conference: Where Sports & Culture Collide, SLA, (May 10, 2024), https://www.sportslaw.org/conferences/2024conf/agenda/index.cfm.
[2] See Universal Music Group and TikTok Announce New Licensing Agreement, UNIVERSAL MUSIC GROUP (May 1, 2024), https://www.universalmusic.com/universal-music-group-and-tiktok-announce-new-licensing-agreement/#:~:text=Los%20Angeles%2C%20May%2001%2C%202024,will%20return%20their%20music%20to.
[3] See Sony Music Entertainment et al. v. Ofra Cosmetics, LLC et al., No. 0:23-cv-62073 (S.D. Fla. Oct. 31, 2023).
[4] See 17 U.S.C. § 201(b); 17 U.S.C. § 101 (defining categories for work made for hire).
[5] See Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) (citing Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (emphasizing some Reid factors for independent contractors)).
[6] See Griner v. King for Congress, Nos. 22-3623, 23-2117 (8th Cir. June 7, 2024) (upholding jury verdict on appeal); Jonathan Montcalm, Will “Success Kid” Owner Continue to Succeed on Appeal in Copyright Dispute?, JDSUPRA (Apr. 23, 2024), https://www.jdsupra.com/legalnews/will-success-kid-owner-continue-to-7308818/.
[7] See Steven Mitchell v. LeBron James et al., No. 2:20-cv-08188 (C.D. Cal. Sept. 8, 2020). The case was settled in February 2021. See Mitchell v. James, No. CV 20-8188-GW-JPR, 2021 U.S. Dist. LEXIS 31242 (C.D. Cal. Feb. 25, 2021).
[8] See Goldman v. Breitbart News Network LLC, No. 1:17-cv-03144-AJN-SN (S.D.N.Y. May 28, 2019) (dismissing voluntarily).
[9] See Goldman v. Breitbart News Network LLC, No. 1:17-cv-03144 (KBF), 2017 WL 3593515 (S.D.N.Y. Aug. 21, 2017) (denying motion to dismiss).
[10] See Sprecher v. Watson, No. 4:20-cv-03196, 2021 WL 666807 (S.D. Tex. Feb. 24, 2021); see also
Sprecher v. Watson, No. 4:20-cv-03196 (S.D. Tex. Feb. 24, 2021) (ordering dismissal).
[11] See Intellectual Property Rights and Commercial Fraud: IPR Center, NFL Partner to Prevent Fake Sports-Related Merchandise from Reaching Fans Ahead of Super Bowl LVII, ICE (Feb. 8, 2023), https://www.ice.gov/news/releases/ipr-center-nfl-partner-prevent-fake-sports-related-merchandise-reaching-fans-ahead.
[12] See Marcus Baram, NFL Sacks Church Super Bowl Parties, ABC News, https://abcnews.go.com/US/story?id=4229536&page=1 (Apr. 14, 2009, 7:22 am); Associated Press, NFL Thwarts Church’s Plan to Show Super Bowl, Fox News, https://www.foxnews.com/story/nfl-thwarts-churchs-plan-to-show-super-bowl (Jan. 13, 2015, 2:47 pm).
