Fourteen NBA teams are currently being sued based on allegations that they illegally synchronized copyrighted songs with videos they posted to their team’s social media accounts.[1]The lawsuits have been brought by Kobalt Music Publishing America (KMPA) and other companies that own or have licensed issues in the songs allegedly used by the defendants. The plaintiffs are accusing the defendants of copyright infringement and demand licensing fees and other damages as well as an injunction to block further unauthorized use.[2] Specifically, at issue are the team’s social media posts where they allegedly used portions of songs from certain artists for various purposes, such as to inform and engage with their fans, increase viewership, and market their products and services.[3]
The cases are being tried in the Southern District of New York and involve well known artists such as Britteny Spears, Justin Bieber, Doja Cart, and Bad Bunny. The fourteen teams accused of these acts are the Atlanta Hawks, Cleveland Cavaliers, Denver Nuggets, Indiana Pacers, Miami Heat, Minnesota Timberwolves, New York Knicks, New Orleans Pelicans, Orlando Magic, Philadelphia 76ers, Portland Trailblazers, Phoenix Suns, Sacramento Kings and Antonio Spurs.[4]
All fourteen teams denied any wrongdoing and raised several affirmative defenses in an attempt to establish that even if they did copy music, it was done under lawful circumstances. First, the defense is arguing that the relevant three-year statute of limitations to bring a cause of action has passed.[5] The teams maintain that the plaintiffs first indicated they were aware of the defendant’s music use on February 26, 2021, but did not file suit until July of 2024, roughly five months after the February 26, 2024, three-year mark had passed. The defendants also raised the defense of copyright misuse. Copyright misuse is a legal principle which maintains that the copyright holder is essentially abusing their monopoly power over certain content.[6] According to the defendants, the plaintiffs have tried to “extort…disproportionate payments” as compensation for “allegedly infringing use”.[7]
Most recently, eight of the fourteen teams named in the lawsuit have asked the United States Supreme Court to step in and make a key ruling regarding the “discovery rule”.[8] They urge the court to reject the rule which doesn’t start the three-year statute of limitations clock for a copyright holder to sue for infringement until they discover or, with due diligence, should have discovered infringement and endorse the “injury rule”, which starts the clock when infringement occurred.[9] In their brief to the Court, the teams explained that they are the defendants in an infringement case over the use of licensed music on social media posts that are in some cases “more than a decade old”.[10]
The teams emphasize that while the discovery rule is not stated in the Copyright Act and lacks statutory support, courts have adopted the rule as a matter of practice and SCOTUS should do the same. Although the rule was created to protect “innocent plaintiffs” who are late in discovering infringement, the defense is arguing that it has since been used as a “powerful weapon” by “copyright trolls” to abuse copyright law.[11]
Further, the discovery rule can be very costly to defendants in infringement cases. The defense points out that the rule itself turns on the plaintiff’s knowledge. As a result, plaintiffs are incentivized to “profess no knowledge” and know less which then becomes a question of fact for the jury that cannot be addressed in pleadings.[12] For these reasons, courts are more likely to keep cases on the docket until the issue of knowledge is resolved, which in turn, increases litigation costs for defendants and subjects them to a more extensive discovery process. The defense further argues that the discovery rule and Copyright Act’s damages provision incentivizes plaintiffs to “accumulate dozens or hundreds of small claims”.[13] Each copyright claim can be worth up to $30,000 and up to $150,000 with willful infringement. The combination of these two claims can result in a brief, accidental infringement with a potential litigation value that is hundreds of times larger than the commercial value of the use.[14]
The Supreme Court is currently weighing whether to take the copyright case the defense wrote their brief in support of. If the Court agrees to take the case, the eight teams may have massive liability.
[1] https://www.sportico.com/law/analysis/2024/nba-teams-defense-copyright-music-1234801875/
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] https://www.yahoo.com/news/nba-teams-ask-scotus-end-212852016.html
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.