Navigating the Noise: Sports Lawyers Tackle the Future of Music Licensing

Nashville, TN— The complicated and often contentious relationship between music and sports licensing captivated a Friday panel during the 50th Annual Sports Lawyers Association Conference. Experts in the field and industry leaders explored the evolving landscape, the complexities of Performance Rights Organizations (PROs), the nuances of music use in stadiums versus social media, the impact of Name, Image, and Likeness (NIL) deals, and the emerging questions and considerations surrounding AI-generated content in sports.

Guiding the discussion was Loren Mulraine, Partner at Spencer Fane, who utilized his expertise in entertainment and sports law to moderate the panel. He was joined by a distinguished group of legal minds: Valeria Williams, Vice President and General Counsel for the Tennessee Titans, offering an in-house perspective from a top NFL franchise; Tim Epstein, Partner at Duggan Bertsch LLC, who frequently represents promoters, venues, and talent in sports and entertainment; Jim Dudukovich, Partner at Nelson Mullins, with extensive experience in advising brands in advertising, intellectual property, and influencer marketing; and Carron Mitchell, Partner at Nixon Peabody LLP, with an impressive track record in intellectual property, music, and entertainment law, particularly as it applies to licensing and publishing.

Valeria Williams, VP and General Counsel, Tennessee Titans

Williams provided a behind-the-scenes look at how an NFL team handles music licensing. She clarified the distinction between the team's own PRO licenses, which cover music played within the stadium during games, versus licenses required by external third-party event promoters using their venue. "We have our own PRO licenses," Williams explained, "[b]ut when events come to our venue, whether it's a concert [or] a live event, we look to that event promoter to have their own specific license." She stressed that the NFL provides a licensing library for in-game music but cautioned this doesn't necessarily clear fan-captured social media clips containing that music.

Addressing the NIL era, Williams noted the commercial implications for athletes. "If they're selling their own merch and promoting themselves and their brand . . . and they're pulling music from an Instagram library, they might not think that that's a commercial use, but it is." This point by Williams highlights the need for an audit of how athletes use music in their content. Furthermore, Williams discussed the team's internal challenges, educating social and marketing teams on the complexities of reposting player content that might feature unlicensed music, even if the player is in team attire. On the topic of AI, she stressed a proactive approach for sports organizations, urging for "parameters, governing measures, setting an AI policy," and robust risk assessment, noting the NFL's own AI regulatory initiatives to manage the inevitable growth and use of such technology.

Tim Epstein, Partner, Duggan Bertsch LLC

Epstein drew parallels between music licensing and collective bargaining, explaining how PROs are increasingly seeking a larger share of event revenue beyond just performance fees, asking for percentages of VIP lift, parking, merchandising, and ticket sales. This demand, he noted, is being fiercely and actively contested and resisted by promoters. He also crucially outlined the need for synchronization licenses when music is paired with video, a common occurrence with fan recordings or team-generated content. "That's going to require you to . . . get a license from the owner of the sound recording . . . and then you're also going to need a license for the composition side," Epstein explained, underscoring the potential complexity with multiple rights holders.

Epstein also emphasized the importance of contractual protections, encouraging lawyers to include clauses for indemnification and to advise and educate their clients—whether they are athletes or promoters—on their responsibilities. He further pointed out the issue of the "empty pocket" if an individual talent is sued but lacks the funds for indemnity, making education and financial awareness of the utmost concern. Another significant point he raised was the distinction between event sponsorship and individual endorsement, where brands might try to leverage event content to imply an athlete endorses their product without a separate agreement. Finally, Epstein touched upon the often-contentious morals clauses in contracts, urging attorneys to understand their clients’ proclivities and not to accept overly broad clauses from venues that could restrict the types of artists or events that can be booked.

Jim Dudukovich, Partner, Nelson Mullins

Dudukovich focused heavily on the digital realm, particularly the common misunderstandings and myths surrounding social media usage. He highlighted how young social media managers for teams or brands often misapply personal social media habits to commercial accounts, where fair use principles typically don't apply. Educating creatives so that they understand what they may do on their personal social media, but not on a brand’s social account, is therefore essential to partnership success, especially with influencer social media account “takeovers.” He also pointed out the crucial difference between general music libraries on platforms like TikTok and Instagram and their separate, often more restrictive, commercial libraries intended for business use.

Dudukovich warned that technology has made enforcement easier for rights holders. "The technology is there now that when you're posting music on social media, the public will find out . . . the technology is going to trap us." He provided examples of major trendy brands facing lawsuits for unlicensed music in social media content. Beyond just contractual clauses for liability, he advocated for due diligence on any third-party creating content and for using contracts as an educational tool, especially with less sophisticated parties like influencers. When it comes to AI, Dudukovich cautioned against using technology to create "sound-alike" music in a bid to avoid licensing fees, as the prompts themselves could be "your smoking gun" in an infringement case. He suggested using AI for tasks one already has familiarity with, wherein the accuracy and the appropriateness of the result can be more easily verified.

Carron Mitchell, Partner, Nixon Peabody LLP

Mitchell also shed light on the intricacies of music libraries themselves, explaining that even if a song is in a platform's commercial library, issues can arise if "there might be co-writers on that song [whose] publisher didn't agree to put those songs in the commercial library." This can make individual tracks unavailable or problematic even though they initially appear usable. She also addressed user-generated content (UGC), stating, "[i]f you're using that user's video to promote the brand, promote the team," then it becomes a commercial use requiring appropriate clearances.

A key area Mitchell addressed was the impact of NIL on student-athletes, who tend to lack sophistication when it comes to licensing. "A lot of student athletes don't know that they need to have the right licenses in place," she observed, particularly when brands encourage or request that they create promotional content and posts. She warned that brands sometimes attempt to offload the licensing burden onto their talent and that "publishers, the record labels, they're going after talent themselves." Her advice to athletes and their agents and representatives is to explore royalty-free music options or to have the proper synchronization licenses secured and in place for use in branded content.

Loren Mulraine, Partner, Spencer Fane (Moderator Insights)

Beyond guiding the conversation, Mulraine offered direct insights. He clarified the difference between a "master use license" (for the original recording) and a "song license" (for the underlying composition). This, he explained, is the reason why "sometimes when you see commercials on TV and there are songs played, it's not the original version of a song," as it can be cheaper to license only the composition for a new recording. Mulraine also used a trademark example case involving a Gatorade commercial with college athletes to illustrate licensing complexities, noting subtle distinctions in how different university branding was displayed, likely due to varying agreements. He stressed that lawyers, especially those advising NIL athletes, need to have a "holistic view" in order to be able to anticipate potential "potholes" their clients may not see, emphasizing the lawyer's role in preventing future litigation through diligent up-front work.

The panel collectively reinforced that as sports, media, and technology continue to increasingly intertwine, a thorough understanding of music licensing—from traditional PROs to the latest AI tools—is more vital than ever for sports lawyers and their clients to avoid costly litigation and ensure compliant and legitimate use of musical works.