A federal lawsuit accusing the American Hockey League and nine AHL teams of music theft is entirely off key, the AHL insists in a newly filed court document.
The AHL on Thursday answered a complaint brought in September by Associated Production Music (APM), a production music company with a catalog that includes the famed theme songs for Monday Night Football and The People’s Court and more than 650,000 other tracks. APM accuses the AHL and teams of using licensed songs without APM’s permission or paying for a license. The complaint cites more than 230 videos on team-affiliated Facebook, Instagram, YouTube and other social media platforms that allegedly use copyrighted songs.
In an answer drafted by Jeffrey A. Payne and other attorneys from Jassy Vick Carolan and Miller Korzenik Sommers Rayman, the AHL denies it engaged in copyright infringement. The league admits it didn’t obtain APM’s permission but insists permission wasn’t required. The AHL also denies that it “has any right or ability to control any of its [teams’] social media” posts and pages, meaning individual teams handle their social media.
In addition, the answer contains more than two dozen affirmative defenses. The AHL contends APM isn’t an exclusive licensee of some of the songs at issue. The league also argues the songs, or at least elements of those songs, are in the public domain.
Fair use—the lawful copying of others’ works for certain purposes, such as for criticism, parody or news reporting—is mentioned in the AHL’s answer as well. At least some of the social media posts at issue likely contained “news” in a sense. Player performance, team activities and ticketing and other information are commonly contained in sports teams’ social media posts. But teams’ social media posts are also typically used to enhance marketing and generate fan interest, which are purposes that could cut against a fair use defense.
Further, the AHL invokes the doctrine of de minimis use, which under copyright law means infringement so minor or insubstantial that it ought not to break the law. A small sample of a song could be viewed as de minimis, and courts have issued a range of rulings on that subject.
Another defense for the AHL is copyright misuse, which is an assertion the copyright holder is abusing its control to extort high payments. Copyright misuse is one of the defenses offered by 14 NBA teams facing a very similar lawsuit brought by Kobalt Music Publishing America and other companies that own or have licensed interests in songs.
Attorneys for APM will have the chance to respond in court filings to the AHL’s legal arguments. This case, like the one involving NBA teams, could have a far-reaching impact on whether and how pro teams incorporate licensed songs in their social media posts.
