The Digital Millennium Copyright Act (DMCA) provides protection for copyright holders to quickly allow for the removal of their material from the Internet if it is used illegally. It has a major presence in much of our entertainment world, particularly in the streaming community. The process of a DMCA takedown takes place as companies and copyright holders locate a use of their trademarked property being used illegally, and file a DMCA notice, which is sent to the poster and the hosting website for a notice of takedown. While the DMCA was introduced in 1998, the ever changing world of entertainment is constantly adjusting the way that the law is used. As sports continue to merge into the larger world of entertainment, the DMCA has become increasingly important.
In sports, a major use of copyrighted music comes from the in-arena music that is played before, during, and after games. This music has been authorized for playing in this capacity and is thus not an issue under the DMCA. However, that music has become an issue as it can be heard as background sound in videos and clips posted online. Because this music is constantly playing during games and practices it ends up finding its way into the background of clips of those games and practices that are posted online. Though the teams may have authorization to play the music in the arena, they need further authorization in order to use it online. As insignificant as background music may seem, the DMCA protects those copyright holders from having their music played over these videos, which could reach thousands, even millions, of viewers without the proper authorization. With the rise of social media use throughout all major leagues, from established platforms like Instagram and Facebook to up-and-coming platforms like Tik Tok, more and more content is being pushed out every single day, potentially without proper authorization.
The main concern here does not seem to be a monetary one. Per a CBS article, the Arizona Cardinals have already reached a six-figure settlement with a record label over their use of unlicensed music. So, though it may not break the bank, it can certainly change the way that content is consumed. There will either need to be licensing agreements by teams and leagues or teams and leagues will need to adjust the type of content that they are creating. So much content includes this type of copyrighted use. Highlights alone are not going to be what is affected. Things like locker room celebrations, mic’d up moments, even pre/post-game interviews could be impacted as DMCA crackdowns increase.
NFL and NBA teams can look to platforms like Twitch to see what the impact may be on their content. The Twitch experience is analogous to the problems the sporting industry faces as streamers, who may have the proper licensing for songs in some capacity, can have their videos taken down if that music is played in the background of a stream. Even if the song had been purchased legally, that does not give the streamer freedom to have it run on their streams. Teams may have the license to play the music in their stadiums but that does not mean that it clips can be sent out to all of their followers with that music without further licensing.
On November 11, 2020, Twitch released a statement where they acknowledged that “things can- and should-be better for creators than they have been recently” and outlined steps to improve the experience for their streamers. In that statement, they outline steps for their streaming community to take in order to avoid DMCA takedowns. These steps include not playing recorded music in your stream, purchasing proper licenses, and using public domain music. Obviously not everything carries over into traditional sports league and social media, but many of the steps recommended can still be helpful to protect usage by these teams until more concrete statements and guidelines can be provided by the leagues.
Whether the problems will be solved privately, as in the settlements reported where the details were not disclosed, or the guidelines will be given more publicly remains to be seen. Either way, keep an eye out on the content you are watching and see how it changes as time goes on.