Fourteen NBA teams accused of illegally synchronizing copyrighted songs with videos they post on social media websites insist in newly filed court documents they’re victims of “copyright misuse.”

The teams last week filed answers to lawsuits brought in July by Kobalt Music Publishing American (KMPA) and other companies that own or have licensed interests in songs. The plaintiffs accuse the teams of copyright infringement and demand licensing fees and other damages, as well as an injunction to block further (allegedly unauthorized) usage.

The cases, which are being tried in the Southern District of New York, involve songs sung by Britney Spears, Justin Bieber, Doja Cat, Bad Bunny and other well-known artists. The 14 teams are the Atlanta Hawks, Cleveland Cavaliers, Denver Nuggets, Indiana Pacers, Miami Heat, Minnesota Timberwolves, New York Knicks, New Orleans Pelicans, Orlando Magic, Philadelphia 76ers, Portland Trail Blazers, Phoenix Suns, Sacramento Kings and San Antonio Spurs.

At issue are teams’ social media postings on Facebook, Instagram, X, YouTube, TikTok, Snapchat and other websites. The teams post portions of songs for varying purposes, including to inform and engage their fan bases, increase viewership and market products and services.

But the teams, who are represented by attorneys David S. Slovick and Anna Kalinina of Barnes & Thornburg LLP, deny any wrongdoing. They also raise a handful of affirmative defenses, which are intended to establish that even if the teams copied music they did so under lawful circumstances.

One defense is that too much time has passed, and the relevant three-year statute of limitations has expired. The teams maintain the plaintiffs first indicated they were aware of teams’ music use on Feb. 26, 2021, whereas they only sued this past July—about five months after the three-year mark (Feb. 26, 2024) had passed.

The teams also accuse the plaintiffs of using software programs to monitor song uses on the internet and creating a database archive of accused uses “long before” 2021. If that is true, the plaintiffs may have, or should have, been aware of alleged infringement before 2021. If the litigation advances, expect the archive—which the teams say the plaintiffs won’t voluntarily produce—to become a key source of evidence.

Another defense is copyright misuse, a legal principle which maintains the copyright holder is essentially abusing monopoly power over certain content. The teams say the plaintiffs have tried to “extort … disproportionate payments” as compensation for “allegedly infringing use.” The plaintiffs are also accused of trying to “leverage their copyright registrations” and making “threats of attorneys’ fees” in what amounts to a music rights stickup. The plaintiffs also allegedly refuse to share data that would reveal “the totality of the music” at issue.

Fair use is also cited as an affirmative defense. Fair refers to lawful copyright of others’ works, such as for news reporting, parody or criticism. The success of fair use hinges on how much copying took place, the purpose of the copying, whether the copying transformed the original work into something new and the extent to which the copying hurt sales of the original work.

If NBA teams can establish they borrowed only small clips of music to inform fans about access to future events or to notify them about newsworthy game developments—such as a player hitting a game-winning shot or a rookie starting for the first time—the more likely fair use will advance their case. But if the usages are better understood as using artists’ music to increase revenue and boost marketing, the teams will face a higher hurdle.

The plaintiffs will attempt to rebut these defenses in forthcoming court filings.

The NBA music cases are occurring while the American Hockey League and nine AHL teams are being sued by Associated Production Music, a production music company with a catalog of more than 650,000 tracks, over the same basic issue: use of copyrighted songs in teams’ social media posts. The AHL case is being heard in a California federal court.