Recently, Sony Music Entertainment sued USC for posting promotional videos to social media accounts linked to the university that use unlicensed musical tracks. According to the suit, USC used 170 unlicensed music recordings on 283 social media videos across 30 social accounts affiliated with the university. Moreover, Sony alleges that they sent repeated warnings to USC starting all the way back in 2021, but the university kept doing it.

Some of the main video culprits involve the university’s athletics department, which used clips of numerous popular songs in media promoting USC’s various teams and athletes. In this regard, the lawsuit has some similarities with suits filed last year against a number of NBA and AHL teams.

What does this tell us about the potential arguments that USC might use to defend itself?

Fair Use… and Maybe the Statute of Limitations?

One of the defenses the university is most likely to use is fair use, which argues that the use of copyrighted material is legal regardless of whether the user obtained permission. Here are some of the key aspects that must be considered for fair use to apply to music:

Purpose. Is the music being used for commercial purposes or for educational or non-profit purposes?

Nature of the work. Is the point of the new work to feature the music or something else, in which case the new work might be deemed transformational?

Amount and Substantiality. How much of the copyrighted work is used – a small portion of the original work or a significant portion?

Market Value Impact. Did the unlicensed use of the material hurt the potential market for that copyrighted work?

Knowing this, there are several potential arguments that USC might try, including:

• Many of the videos in the claim are quite short, utilizing only a few seconds of the protected music in question. Using only small portions of a work would be more in line with fair use.
• A number of the posts are mainly there to share news, such as the release of a team’s schedule, a reminder of an upcoming game, or the outcome of a particular game. This would arguably fall into the “educational” bucket.
• The assertion that videos celebrating an accomplishment by an athlete or team which happen to include music briefly are mainly about that accomplishment, which could put them in the “transformational” bucket.

Separately, the school may argue that – at least with some of the alleged infringing uses – the three-year statute of limitations has run out.

What about Sony? How are they likely to fight back?

“Enriching USC at the Expense of Sony Music and Its Artists”

The heart of Sony’s argument is right there in the record label’s complaint. Essentially, it says that USC:

• Has an athletics program that “bears the hallmarks of a commercial enterprise”
• Profits from the increased fan engagement that results from social media posts using Sony music
• Relies on that engagement for NIL and other important activities

Seemingly supporting their argument is this quote from USC’s athletic director: “…all athletic directors are thinking 24/7 about revenue generation.” In other words, everything they do – including those videos – is all about bringing more money to the department and the university.

The flip side of this is Sony’s contention that USC using their music in various media hurt the potential market for those works. For example, the viral “Arrival of the Trojan” football hype video, which featured chart-topping song “Like That” mere days after it debuted, has received millions of views online in addition to being played on the stadium jumbotron before every game. Each time that video played could be argued as lost revenue for Sony and their artists.

To Use a Music Clip Or Not Use a Music Clip….

Ultimately, this question is about more than just USC, sports teams, or even whether something is “fair use” simply because a university is doing it. What is being litigated here is to what degree portions of copyright-protected music can be used without permission.

In a world where short social videos are only becoming more popular and common, this is a huge question. Sometimes it is better to err on the side of caution, and just pay the licensing fee to play the music. That decision is cheaper in the long run than fighting a legal battle. But there are always the risk takers and people who disagree with copyright law – who decide to tempt fate.

Starting to worry about what you may have included in your own social videos? Reach out and we can talk about the specifics of your situation.