*The views expressed in this article do not represent the views of Santa Clara University.
Credit: Sergeant Matt Hecht | rawpixel.com
While music has long been used to improve the enjoyment experienced by baseball fans, walk-up music is a far more recent idea. It began in 1970, when the Chicago White Sox hired Nancy Faust to play the organ at the stadium. Nancy began revolutionizing the way baseball and music were connected by identifying songs to play that would supplement what the radio broadcaster was calling at the time. In Nancy’s third year with the team, after receiving nothing but positive feedback, she realized that she could play “specific songs for each batter based many times on the phrases of” the radio broadcaster. Nancy’s attentiveness to the broadcaster’s calls and her ability to identify certain catch-phrases and sayings allowed her to connect them with relevant music. Various other organists around the league began following Nancy’s lead, and overtime the idea flourished and expanded, largely in part to the advancement of PA systems in stadiums.
In the 1990’s, the choice of music began slowly expanding from instrumentals to specific guitar riffs, and eventually songs with lyrics. This began an age of recorded player-specific music, although the players were not in control of the selections being made. That is, until 1994, when Lenny Dykstra of the Philadelphia Phillies requested that “Hold my Hand” by Hootie and the Blowfish be played for his first at-bat. He went on to request other songs for other at-bats, but when he came up hitless in his at-bats, fans scrutinized the choice in music and it was dropped. Within a year, the entire league (except the Chicago Cubs who waited until 2015) allowed their players to make specific song requests for their at-bats. With the music being pre-recorded, published pieces of music, the league and teams had to become wary of infringing on the artists’ intellectual property rights.
Walk-up music has become a staple of the live, in-stadium, baseball viewing experience. The music is a way for players to show sides of themselves that go beyond their statistics and athletic performances. Any public playing of these songs requires permission from the holder of the copyright. Teams acquire this permission in the form of a public performance license. While the stadium may have the license to play the music in the stadium, the problem arises when the music is heard in the background of broadcast footage or social media video clips and digital content. Background music may appear insignificant, but these licenses are designed to protect copyright holders from the thousands, even millions, of viewers that these posts can reach. The prominence of new social media platforms makes these posts even more readily accessible, with more content being posted every day.
For example, 2018 American League MVP and six-time Gold Glove Award winner, Mookie Betts, who has amassed 1.2 million followers on Instagram, is barred from posting any in-stadium music on his platforms, even his chosen walk-up music. Similarly, teams like the New York Yankees and Los Angeles Dodgers, who both have over 3 million followers, are also barred from posting any of the music played during games, even with their established partnerships and standing license agreements with the production companies. Their ability to draw followers to their content also draws the attention of the copyright holders. So while your typical fan is likely to get away with posting the music on their personal platforms, teams, players, and even influencers, are not afforded the same leniency due to their reach.
Copyright and patent authority is granted to Congress in Article I, Section 8 of the Constitution. Under copyright law, the copyright holder has an exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission,” in particular when it comes to music and sound recordings. For every song, there is a copyright on the musical work and a copyright on the sound recording. The leading performing rights organization for professional sports, BMI, offers licensing agreements that cover both of these copyrights, but is limited by way of medium.
Said license shall not include the right to broadcast, telecast, cablecast, or otherwise transmit the performances to persons outside of the Licensed Premises or the right to record or otherwise mechanically reproduce the performance by any means.
This excludes broadcasts of the game that catch songs playing in the background, but more importantly, excludes athletes or even the team themselves from posting video recordings on their websites or social media pages that catch the stadium’s music playing in the background. If the team wishes to share experiences from the game that include sound recordings, they must purchase an additional digital license. The BMI website offers a variety of digital licenses including a Corporate Image license for “promot[ing] [a] business or corporate brand, or generat[ing] little or no direct revenue.” The rate varies based on the website or social media page traffic.
This may appear redundant to your favorite MLB team, but the current standard of licensing language requires separate licenses for the sound expression medium: one for stadium speakers and one for their online presence.