By Brandon M. Ballard & Michael S. Carroll
In July of 2024, Kobalt Music Publishing America, Inc. and other music companies filed suit against 14 NBA teams in the US District Court for the Southern District of New York, in the latest ongoing battle between music publishers and organizations that allegedly use copyrighted material without proper authorization (e.g., Artist Publishing Group, LLC v. New York Knicks, LLC, 2024). The plaintiffs, representing significant entities in the music publishing industry, allege that the defendants (teams) engaged in unauthorized use of copyrighted music in social media postings on Instagram, TikTok, X, Youtube, and Facebook and are seeking to protect their intellectual property rights and ensure that their works are not exploited without due compensation.
Kobalt represents the exclusive licensing agent for the plaintiffs named in the suits and has allegedly been notifying the music companies of the alleged infringement for the past three years. The music in question involves songs sung by artists such as Britney Spears, Justin Bieber, Doja Cat, Bad Bunny and other well-known artists. Defendants include the Atlanta Hawks, Cleveland Cavaliers, Denver Nuggets, Indiana Pacers, Miami Heat, Minnesota Timberwolves, New Orleans Pelicans, New York Knicks, Orlando Magic, Philadelphia 76ers, Phoenix Suns, Portland Trail Blazers, Sacramento Kings, and San Antonio Spurs.
The 14 complaints are slightly different with respect to specific instances and examples provided regarding the unauthorized use of artists’ music, but they all contain the same basic allegations. Each team is being sued for three separate causes of action for copyright infringement and cover a range of activities, from directly using copyrighted material without permission to contributing to or benefiting from such unauthorized use. By including these various allegations, the plaintiffs aim to address all possible ways in which their rights may have been violated and to hold the defendants accountable for their actions. The causes of action include:
- 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.
- Vicarious copyright infringement, seeking to impose secondary liability and holding the teams accountable for further infringements by third parties.
An example allegation in one of the complaints involves the Orlando Magic, who are accused of unauthorized use involving 27 songs. The complaint states that the Magic had exploited the copyrights of Kobalt Music Publishing by synchronizing the music with team video clips intended to promote commercial activities of the team and also posting on a variety of consumer-facing platforms (e.g., social media) and that they did so without plaintiffs’ license, authorization, or consent.
Within the respective suits, plaintiffs note that the defendant teams are “acutely aware” of the protections that copyright law in the US affords companies, as they themselves have active trademarks registered with the United States Patent and Trademark Office (USPTO). The defendants furthermore utilize the full extent of legal protections available for their own intellectual property (IP) while knowingly and willfully infringing on the intellectual property rights of the plaintiffs. This specific claim highlights the broader issue of how sports teams and organizations may use music in their promotional and entertainment activities without securing the necessary permissions. The complaint alleges that the use of these songs without authorization not only infringes on the rights of the music publishers but also potentially deprives the artists and creators of their deserved royalties and recognition.
Damages Sought for Copyright Infringement
Plaintiffs are seeking up to $150,000 for each unauthorized use of the copyrighted material, an amount that reflects the seriousness with which the plaintiffs view the infringement of their rights. As such, the damages for each team could be in the millions, considering the high number of documented instances of alleged infringement. Plaintiffs believe that these potential financial penalties will serve as a deterrent to other organizations that might consider using copyrighted material without proper authorization. It also underscores the value of intellectual property and the importance of respecting the legal rights of creators and publishers.
Defendant Teams’ Response
All 14 NBA teams deny any wrongdoing in their response and raise a number of affirmative defenses, arguing that even if they did copy music they did so under lawful circumstances. First, the teams argue that the relevant three-year statute of limitations to bring such a case has passed. The teams claim that the plaintiffs first indicated that they were aware of the use of music by the teams on February 26, 2021 and that they brought the lawsuits in July of 2024, approximately five months past the three-year mark. As such, plaintiffs may have deliberately allowed the teams to use music for years before suddenly crying foul and demanding compensation.
The teams also allege that the plaintiffs utilized software to monitor song usage on the internet and created a database of archived uses long before 2021, which means plaintiffs should have been aware of the alleged infringement prior to 2021. TuneSat LLC was used to detect the alleged infringements by each team. This company specializes in monitoring and identifying the use of music across various platforms, providing evidence that can be crucial in legal cases involving copyright infringement. The use of such technology underscores the importance of accurate and reliable detection methods in enforcing intellectual property rights. Defendants also allege copyright misuse and argue that plaintiffs engaged in extortion and seek disproportionate payments for the allegedly infringing use. Finally, defendants also argue that any use of the alleged infringed works constitutes fair use. Key elements in a fair use analysis would include such things as the amount of a work (i.e., song) used in a clip, the purpose of the use of the song, whether the use transformed the original work into something new, and the extent to which the use of the infringed song hurt the sales of the original work.
Settlement and Consolidation
Subsequent to the filing of the lawsuits, the Atlanta Hawks engaged in settlement negotiations with the plaintiffs and are currently working to finalize the terms of an agreement. The plaintiffs are seeking to consolidate the remaining 13 cases, as the alleged infringing conduct is essentially the same, defendants’ defenses are essentially the same, and the only differences include the specific songs exploited, the medium on which the alleged infringement occurred, and the ultimate damage amounts.
These NBA music cases are occurring while the American Hockey League (AHL) and nine AHL teams are being sued by Associated Production Music, a production music company with a catalog of more than 650,000 tracks, over the same basic issue: use of copyrighted songs in teams’ social media posts. The AHL case is being heard in a California federal court.
Conclusion
In conclusion, this battery of suits filed by Kobalt Music Publishing America, Inc. and Artist Publishing Group against these teams highlights the ongoing challenges in protecting intellectual property rights in the digital age. The case underscores the importance of securing proper authorization for the use of copyrighted material and the potential consequences of failing to do so. The involvement of technology such as TuneSat LLC in detecting infringements and the strategic use of consolidation in legal proceedings are key elements in this complex legal battle. As the case progresses, it will be interesting to see how the courts address these issues and what impact the outcome will have on the broader landscape of intellectual property rights and enforcement.
References
Artist Publishing Group, LLC, v. New York Knicks, LLC, No. 24-5460 (S.D.N.Y. 2024). https://storage.courtlistener.com/recap/gov.uscourts.nysd.625076/gov.uscourts.nysd.625076.5.0.pdf
Brandon M. Ballard is an PhD student at Troy University specializing in research related to athletic identity, Afrofuturism, law and social change/social justice in sport and entertainment. He has self-published articles aimed to mobilize the African American community, and created a comic book series that advocates for understanding, support, and community action regarding mental health among veterans. He lives in Raleigh, NC.
Michael S. Carroll is a Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He also serves as Online Program Coordinator for Troy University and works closely with students in the TROY doctoral program.
