Just “One Dance” is Enough to Get You Sued: 14 NBA Teams Sued for Copyright Infringement Following Posts to Social Media

One of the most effective ways today to promote your brand is through social media. Many institutions, such as sports teams, are using TikTok, Instagram, YouTube, and X (formerly Twitter) to connect with fans. These platforms allow users to include songs in videos that will be posted to the users’ account. The problem: many songs cannot be used for commercial or promotional purposes without a license from the copyright owner.[1] On Thursday, July 18, 2024, fourteen National Basketball Association (“NBA”) teams were sued for not having licenses for the songs they used in their social media videos.

Kobalt Music Publishing America, Inc. alongside several other music publication companies and licensing agencies, including Artist Publishing Group, LLC, MXM Music AB, Prescription Songs, LLC, and others (collectively, “Plaintiffs”) filed lawsuits against fourteen teams subsequent to the franchises’ posts to social media.[2] The fourteen teams are (1) the New York Knicks; (2) the Cleveland Cavaliers; (3) the Atlanta Hawks; (4) the Miami Heat; (5) the Sacramento Kings; (6) the Orlando Magic; (7) the Denver Nuggets; (8) the Indiana Pacers; (9) the New Orleans Pelicans; (10) the San Antonio Spurs; (11) the Phoenix Suns; (12) the Minnesota Timberwolves; (13) the Portland Trail Blazers; and (14) Philadelphia 76ers.[3]

There are separate complaints filed against each team, though each have the same allegations.[4] Plaintiffs claim to own copyright interests in the songs these teams used in videos, such as “Don’t Start Now” by Dua Lipa, posted to the Knicks’ TikTok, “One Dance” by Drake, posted to the Timberwolves’ Instagram and Twitter, “Party in the U.S.A.” by Miley Cyrus posted to the Trail Blazers’ website, and many more.[5] Plaintiffs allege each team, without authorization, used copyrighted songs to “engage their fanbase, increase their viewership and promote [team] products and activities” by posting videos containing these songs to their social media accounts.[6]

Consequently, each team is being sued for three separate causes of action for copyright infringement. The first cause of action is for direct copyright infringement, alleging that the teams used certain songs without getting a license from the respective music company, thus violating 17 U.S.C. §§106, 501 of the United States Copyright Act.[7] The second cause of action is for contributory copyright infringement, alleging that the defendants knowingly contributed to and participated in the distribution of these videos by third parties; specifically, the social media users who then reposted the videos to their own accounts.[8] The third cause of action is for vicarious copyright infringement, seeking to impose secondary liability and holding the teams accountable for further infringements by third parties.[9]

Plaintiffs are seeking actual damages in an amount to be determined at trial and the disgorgement of the profits gained from the infringement, or alternatively, Plaintiffs are seeking statutory damages up to $150,000 per song infringed.[10] In addition, Plaintiffs are seeking preliminary and permanent injunctions, prohibiting the franchises from further using Plaintiffs’ copyrighted works, as well as the destruction of all existing infringed work products.[11]

While posting your sports team, or brand generally, on social media is an easy way to advertise, the NBA lawsuits are a cautionary tale to be wise in choosing the songs that accompany the advertisements. If a song is copyrighted, be sure to have the proper licensing and authorization to use it in your post. Just “One Dance” posted to a social media account could be enough to get you into legal trouble.

Cullen and Dykman’s Intellectual Property team continues to monitor important developments in trademark and copyright law. Should you have any questions about this legal alert, please feel free to contact Karen Levin (klevin@cullenllp.com) at (516) 296-9110 or Ariel E. Ronneburger (aronneburger@cullenllp.com) at (516) 296-9182.  Thank you to Kathleen Loy, a summer associate, who contributed to this article.

This advisory provides a brief overview of the most significant changes in the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient

Footnotes

[1] Alex Schiffer, Lawsuits Allege Widespread Copyright Violations by NBA Teams, Front Office Sports (Jul. 23, 2024, 5:26 PM), https://frontofficesports.com/nba-music-lawsuits-copyright/

[2] See generally Artist Publ’g Grp. LLC. v. Trail Blazers Inc., No. 24-5464 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Suns Legacy Partners LLC, No. 24-5463 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC, v. Denver Nuggets LP, No. 24-5455 (S.D.N.Y. filed Jul. 18, 2024).

[3] Artist Publ’g Grp. LLC v. Atlanta Hawks LP, No. 24-5453 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Cavaliers Operating Co. LLC, No. 24-5454 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Denver Nuggets LP, No. 24-5455; Artist Publ’g Grp. LLC v. Pacers Basketball, No. 24-5456 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Miami Heat LP, No. 24-5457 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC, v. Minn. Timberwolves Basketball LP, No. 24-5458 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. New Orleans Pelicans NBA LLC, No. 24-5459 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. N.Y. Knicks LLC, No. 24-5460 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Orlando Magic Ltd., No. 24-5461 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Phila. 76ers LP, No. 24-5462 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. Suns Legacy Partners LLC, No. 24-5463; Artist Publ’g Grp. LLC. v. Trail Blazers Inc., No. 24-5464; Artist Publ’g Grp. LLC v. Sacramento Kings LP, No. 24-5465 (S.D.N.Y. filed Jul. 18, 2024); Artist Publ’g Grp. LLC v. San Antonio Spurs LLC, No. 24-5466 (S.D.N.Y. filed Jul. 18, 2024).

[4] See generally Artist Publ’g Grp. LLC v. Atlanta Hawks LP, No. 24-5453; Artist Publ’g Grp. LLC v. Cavaliers Operating Co. LLC, No. 24-5454; Artist Publ’g Grp. LLC v. Orlando Magic Ltd., No. 24-5461 (alleging the same three causes of action).

[5] See, e.g., Artist Publ’g Grp. LLC v. N.Y. Knicks LLC, No. 24-5460 at 13.; Artist Publ’g Grp. LLC, v. Minn. Timberwolves Basketball LP, No. 24-5458 at 12; Artist Publ’g Grp. LLC. v. Trail Blazers Inc., No. 24-5464 at 12.

[6] See, e.g., Artist Publ’g Grp. LLC v. Miami Heat LP, No. 24-5457 at 4; Artist Publ’g Grp. LLC v. Phila. 76ers LP, No. 24-5462 at 4.

[7] See, e.g., Artist Publ’g Grp. LLC v. San Antonio Spurs LLC, No. 24-5466 at 5; Artist Publ’g Grp. LLC v. Sacramento Kings LP, No. 24-5465 at 5. “The owner of copyright under this title has the exclusive rights to do and to authorize” the reproduction and distribution of copyrighted works. 17 U.S.C. § 106. “Anyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” 17 U.S.C. 501.

[8] See generally Artist Publ’g Grp. LLC, v. Minn. Timberwolves Basketball LP, No. 24-5458; Artist Publ’g Grp. LLC v. New Orleans Pelicans NBA LLC, No. 24-5459 (alleging contributory copyright infringement).

[9] See, e.g., Artist Publ’g Grp. LLC v. New Orleans Pelicans NBA LLC, No. 24-5459 at 7.; Artist Publ’g Grp. LLC v. Pacers Basketball, No. 24-5456 at 7.

[10] See generally Artist Publ’g Grp. LLC v. Atlanta Hawks LP, No. 24-5453; Artist Publ’g Grp. LLC v. Phila. 76ers LP, No. 24-5462 (citing to 17. U.S.C. § 504(b),(c) for damages). “The copyright owner is entitled to recover the actual damages suffered . . . as a result of the infringement.” 17. U.S.C. § 504(b). Or, “the copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action.” 17. U.S.C. § 504(c).

[11] See generally Artist Publ’g Grp. LLC v. Orlando Magic Ltd., No. 24-5461; Artist Publ’g Grp. LLC v. San Antonio Spurs LLC, No. 24-5466 (citing to 17. U.S.C. § 502, 503 for injunctions). A remedy for infringement includes injunctions to prevent future infringement. 17. U.S.C. § 502. The Court may also order the “destruction or other reasonable disposition” of the work created by means of infringement. 17. U.S.C. § 503.