Black Water Rising, a self-proclaimed power rock band from Brooklyn (also, self-proclaimed "Bad Mother ****ers"), has filed a $30 million lawsuit against the team, claiming that the team failed to gain permission to use their song "Rise" in a pre-game pump up video that the Devils used during the 2010-11 season.
The song is licensed by ASCAP, or the American Society of Composers, Authors and Publishers, which works as a sort of middle man between artists like Black Water Rising and venues such as Prudential Center or teams such as the Devils. These organizations purchase "blanket licenses" through ASCAP, and that license grants them the permission to use their entire collection of music in a public setting, such as an arena or over the airwaves.
Where the problem arises, according to the band, is in the "promotional use" of the song by the Devils. From a statement on the band's Facebook page:
But, upon further investigation into the matter I found a video on their official website that also used the song to promote the team, and it was this promotional video that was playing above the ice on giant screens every night the game began, and gave the band no credit at all.
This type of usage is not covered under any blanket license and needed to be cleared by the copyright holder, me. 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.
Here's a look at that video from YouTube. We couldn't find it in a search of the Devils' website.
The song in question is played for about 39 seconds, from the :50 mark of that video to the 1:29 mark.
What makes this lawsuit all the more curious is the timing. Back in October 2010, at the start of last hockey season when the Devils first began using the intro video shown above, the band clearly knew that the team was using the song in their pre-game video.
They posted a YouTube video, which has since been removed, on their official Myspace blog, along with the words "BWR'S 'RISE' NOW THE OFFICIAL SONG OF THE NJ DEVILS!"
Bass player Oddie McLaughlin is also quoted on several sites around the Web (in what appears to be a press release) as saying, "I've been a huge hockey fan since I was a kid and to have our song ‘Rise' played before the New Jersey Devils is beyond my wildest dreams. So let's drop the puck and ‘Rise' to a new level of hockey. Go Devils!!"
The reputable AOL Music site Noisecreep also passed along guitarist John Fattoruso's message of excitement regarding the news in a late October story.
"This all just kind of happened without us even pursuing anything," guitarist John Fattoruso told Noisecreep about their unlikely partnership with the New Jersey Devils. "We got am e-mail from a friend who heard it and we went investigating and there it was on their website. Now it's time to capitalize on such a huge opportunity to get the name and music of Black Water Rising out there even more. It was just a case of being in the right place at the right time, I guess you could say. We're stoked about it!"
To show such enthusiasm for the use of their work, only to turn around months later and sue the team for that use, is extremely curious.
SB Nation reached out to ASCAP on Monday for clarification on the rules regarding their licenses, as well as an explanation on the differences between a "dramatic performance" license that the band claims is necessary here, and the "blanket license" that seems to cover any and all use of these songs. We'll update as soon as we hear more information.
For more on the New Jersey Devils, including actual on-the-ice hockey stuff, click on over to In Lou We Trust.