The New Jersey Devils have been sued for $10 million by Black Water Rising, a band that claims in their lawsuit that the team used one of their songs, "Rise," without the proper license. It appears as though they are incorrect in their claim.
Note: We originally cited a New York Post report that said it was a $30 million suit, but according to the band on Facebook, it's a $10 million suit and "The Post printed 30M for shock."
A company called ASCAP serves as the middle man between musicians and all organizations that wish to obtain the rights to play music in a public setting. There are thousands of these organizations that hold ASCAP licenses, from parade organizers to SiriusXM Satellite Radio to, yes, hockey teams and arenas.
Most of these organizations hold "blanket licenses," which cover just about every public use of ASCAP-licensed music that you can imagine. The song in question here is licensed by ASCAP, and thus is available for use by organizations that hold ASCAP licenses.
But the claim from the band is that the blanket license doesn't cover the use of the song, and that the Devils (or the NHL) must hold a different kind of license, called a "sync license," to use their song alongside a pregame pump up video that played at the Rock.
We spoke with ASCAP's Senior Vice President of Licensing, Vincent Candilora, today about these licenses in an attempt to clear up some of the confusion. For starters, Candilora confirmed to us that the National Hockey League holds a license through ASCAP that applies to all of their venues in the United States. That would include Prudential Center, home of the Devils, even if the feds would like to claim Newark, N.J. isn't part of the union.
But what exactly does that license cover? Let's allow him to explain.
CANDILORA: The concept of the blanket, or umbrella license, is basically an agreement that says you have a blanket or umbrella to use any of the works -- and we have eight and a half million copyrighted musical compositions that ASCAP represents -- so you can use any of those works as many times as you like and you pay a flat fee under the license.
The fee is usually based upon -- since we're talking about the public performance of a copyrighted work -- roughly around the size of what the audience, or what the public is, without it being too complex where people are reporting attendance and things like that. So what we normally do for sports teams, it's usually the number of home games that they play would be a factor in what the license fee would be.
It provides them, you know, if they want to have a band in between periods like the Predators do in Nashville, all of the music that's used. As soon as the play stops, the music that's played before the puck drops again. Any of the music that's used in the arena near the concession is all covered.
SB NATION: Does it cover music that's used in a pregame video?
VC: Like on scoreboards?
SBN: Yeah, exactly.
Now, if the team wanted to use the music in a television commercial promoting the team or anything along those lines, it would require a different license. Candilora explained that as well.
VC: That normally requires a different right called a synchronization right where they are taking the song, the property, of one of our members and synchronizing it in a timed visual sequence with a video, film or any way they can do the visual. That is a right that we do not handle. You'd have to go to the music publisher for a synchronization license.
SBN: Just to clarify then, something that's in the arena -- if they were to sync it up with a video that's in the arena and it's used to entertain the crowd -- that's something that the blanket license would cover? But if it were somewhere else, say on television, it would be a different license?
VC: That's correct.
We haven't heard of any instance of the Devils using the song in a television or radio commercial, or for that matter, any context other than the pregame video inside Prudential Center. Again, let's go back to the exact reasoning the band gave for their lawsuit on their Facebook page earlier Monday:
The use of a song in a video/movie format needs to be covered by what is called a sync license for a "dramatic performance." The song "Rise" is being used as part of their marketing campaign of which they make millions of dollars without so much as a phone call to ask if BWR wanted to be a part of it! This constitutes blatant copyright infringement. Besides total disregard for permission to use the song, the band was not even given credit in the stadium, so no one but a few fans knew who the music was by.
As Mr. Candilora told us Monday, the team has the permission to use the song inside the arena. They don't need a sync license to do so, and they don't need to give credit to the band. They didn't give credit to AC/DC for using "Hells Bells" in the same pregame video, and they don't need to give credit to Black Water Rising for using "Rise."
After breaking down the facts here and cutting through the rhetoric spit out by this band -- "they're making millions and using us without permission!" -- it seems pretty clear that the Devils haven't done anything wrong here. Unless the band can prove that their song was also used in a television commercial or something, it doesn't seem like this is a lawsuit that will hold water.
For more on the Devils and this lawsuit, check in with SB Nation's In Lou We Trust.