Almost half of the teams in the National Basketball Association (NBA) were recently sued for copyright infringement. In the complaint filed against the Atlanta Hawks, one of the plaintiffs—publisher Kobalt Music Publishing America (Kobalt), the exclusive agent for the licensing of all other plaintiffs’ copyrights at issue—alleged that the NBA teams have been exploiting the rights conferred to the copyright holders by syncing videos posted on various websites and social media platforms (e.g., Instagram, Facebook, and TikTok) with music owned by third parties without obtaining the necessary consent to do so. Knobbe Martens Partner Jonathan Hyman and Associate Nickolas Taylor recently authored an article discussing concerns surrounding intellectual property infringement by social media content creators. The lawsuits filed against the various NBA teams similarly highlights the intellectual property infringement concerns that can (and often do) arise in the modern world of social media and the internet.
The complaint states that “within the last three years,” Kobalt made the various plaintiffs aware of the unauthorized uses of their music-related copyrights. One of the alleged unauthorized uses included posting videos owned by an NBA team with music not properly licensed to the team. As discussed in Hyman and Taylor’s article, just because a social media post/concept is trending does not mean that the social media use is lawful. NBA teams may have observed others posting content in a similar way and may have assumed that such use was acceptable. Considering that each NBA team has an in-house legal department, it is a surprise that these departments did not appreciate the copyright violation that occurs when using unlicensed music on social media, especially after being notified by the exclusive copyright licensor.
The social media accounts owned and operated by the NBA franchises have millions of followers. As of April 2024, the lowest-followed NBA Instagram account—the Utah Jazz—had over 1.4 million followers, while the Golden State Warriors has over 32 million followers. While the issue has not yet been fully litigated, it seems highly unlikely that any post of an NBA team will be deemed as “personal use.” Even if the true intent of a team’s post is fan or team support, strong arguments exist that such posts provide the team financial gain and should be considered “business use” for purposes of adhering to the Terms of Service (TOS) on such platform.
This analysis does become more complicated as each NBA team owns a social media account for virtually every platform, and the TOS do vary by platform. It is common for teams to post an Instagram story that links a similar post originating from their TikTok account. Use of copyrighted music may be allowed on some social media platforms, but not others. Litigation over TOS almost always ends in settlement, leaving users unsure as to the extent that TOS violations are legally enforceable. Regardless, because TOS varies by platform, the rules that a social media user must adhere to similarly varies, and it is important that users are informed as to what these rules are and how to abide by them.
Ultimately, the lawsuits filed against the 14 NBA teams serves as another reminder of the caution that companies and individuals alike need to exercise when posting on social media. While an individual may be committing copyright infringement, copyright holders may not determine that it is worth the time and effort to police each and every infringement that occurs on the internet. However, this does not mean that entities like the NBA can expect to act in the same way and have their infringement be disregarded.
