It’s fairly well-known that if you want to feature a song in a video posted on social media, you should first obtain a license for the synchronization rights. But what about a song that isn’t featured in a video but just happens to be playing in the background when a video is created? Even if very faintly? Say, for example, you record a video to post on social media at a promotional event for your brand, or at a professional sporting event, where music is being played over speakers in the background? Increasingly, music copyright owners and rights management agencies are taking enforcement action against just such types of uses. And, these enforcement actions are happening even where the music in the background was being playing pursuant to a license.
To date, such enforcement efforts appear to have been focused on companies that have licenses to play music in stadiums, arenas, stores, or other large venues. In those cases, the music playing in the venue can be heard in the background of videos posted online. Copyright owners assert that while the venue’s license allowed the music to be played in the venue, it did not allow the music to be recorded on the video or posted on social media or elsewhere online. Thus, where music is playing in the background, even if only faintly, copyright owners have claimed copyright infringement.
Reports indicate that the NBA, NFL, numerous individual teams, and perhaps the MLS, have been targeted in the past few years; with at least one case resulting in a six figure settlement.
In February, 2023, Associated Production Music LLC filed suit in Federal Court in Los Angeles, against Major League Soccer and several MLS teams for an injunction and damages, including statutory damages in excess of $39 million, based upon a claim of infringement of the copyrights in at least 253 sound recordings and their underlying musical compositions. It is not clear from the filed complaint whether this lawsuit stems from the posting of videos with music playing in the background or some other allegedly unlicensed use of music in videos posted online. What is clear is that copyright owners are closely monitoring social media for infringements. In particular the defendants’ alleged violations stem from videos posted to numerous consumer-facing online platforms, including Facebook, Instagram, Twitter, and the websites of MLS and MLS teams. As of April 11, 2023, none of the defendants had filed a response to the complaint on the merits.
There are also reports that private equity investors have been acquiring rights to various music copyrights, particularly those that are not administered by the large rights management agencies, e.g., ASCAP, BMI and SESAC, with an eye towards stopping infringement of their copyright rights so as to facilitate the appreciation of their copyright assets. The same rationale that supports action against large sports leagues and teams, can be applied to operators of malls, stores, and smaller venues, as well as any individual or brand posting content online where music can be heard in the background. Perhaps, it will eventually come to resemble the enforcement strategy against online infringement currently utilized by photograph rights owners and management agencies – crawling the web looking for infringements and sending out countless money demands.
If you are concerned about being or becoming a target, want to explore workarounds for your promotional posts, or just want to learn about best practices for posting content online, we are available to help.