Hank's IP Brew — Issue #13

Howdy, y'all.

This week: Indiana just opened the door to high school NIL — and a paint company found out the hard way that using a famous song in a social media ad is not a gray area. Two stories, one theme: the rules around who owns what are expanding, and the bill for ignoring them keeps getting bigger.

Let's go.

For years, NIL was a college story. That's changing fast.

On May 4, the Indiana High School Athletic Association voted 13–5 to approve what it's calling "Personal Branding Activities" — a framework that lets Indiana high school athletes earn money from their name, image, and likeness starting with the 2026–27 school year. Indiana is one of the last states in the country to get here. Michigan became the 46th state to allow high school NIL back in January. The holdouts are now a very short list.

What Indiana's rule actually allows

The framework gives student-athletes real room to operate — as long as they keep their school out of it.

An athlete can take a deal with a sporting goods brand, run a social media promotion, charge for private lessons or clinics, or appear at events for pay. What they can't do is tie any of that activity to their school's name, their team, or school facilities and property. You own your name. You don't own the school's name. As IHSAA Commissioner Paul Neidig put it: "If I'm an athlete and an apparel company asks me to use my social media to promote their product, that's fine — as long as they don't say 'I'm the point guard at this school' and I'm in uniform."

Schools are also specifically prohibited from using Personal Branding Activities as a recruiting tool. The rule is designed to let athletes benefit from their own identity, not to let schools use NIL as another lever to pull in transfers.

Why this matters beyond Indiana

The state-by-state expansion of high school NIL isn't just a policy story — it's a market story. Brands that work with athletes now have a dramatically larger pool to draw from. A five-star wide receiver like Lawrence North's Monshun Sales, who told reporters he felt "held back" by Indiana's old rules while recruits in other states were already cashing in, is exactly the profile that brands are going to start approaching earlier and earlier.

That creates legal infrastructure questions that most high school athletes and their families aren't prepared for. Who reviews the contract? What are the prohibited categories? What happens if the deal requires them to wear a jersey or stand in front of a scoreboard? These questions are going to need answers — and right now, there aren't many people in the room with the right background to answer them.

The practical angle

If you work with brands that do athlete marketing — or if you're an athlete, coach, or parent navigating this space — the high school expansion means you need to understand the rules in your specific state. They're not uniform. Indiana's framework has guardrails. Other states have different guardrails, or fewer of them. The space is moving fast, and the rules are a patchwork.

The one constant: the athlete owns their identity. Everything else is about knowing where the lines are drawn.

Here's a scenario worth memorizing.

A company wants to run a social media campaign. Someone on the marketing team suggests using a recognizable song as the backdrop. The song is famous, the vibe is perfect, and it's just an Instagram post — not a TV commercial, not a Super Bowl spot. How bad could it be?

Ask Behr Paint.

ABKCO Music & Records, the company that owns The Rolling Stones' early master recordings, sued Behr Paint last November for copyright infringement. The claim: Behr used "Paint It Black" — the Stones' 1966 classic — in a social media advertisement without paying for a license. ABKCO stated in its complaint that licensing a recording of that stature typically runs "hundreds of thousands to millions of dollars." The infringement, they said, was willful.

The case settled this week. A joint notice was filed in California courts confirming both sides had finalized a written agreement and planned to dismiss the case. Terms were not disclosed — they almost never are in these situations. But ABKCO doesn't file nuisance suits, and Behr didn't fight it to judgment. Draw your own conclusions about what the number looked like.

The part most people get wrong

A lot of creators and brands operate under a working assumption that social media is somehow different — that a quick video on Instagram or TikTok doesn't carry the same legal weight as a broadcast commercial. It does. The copyright analysis is the same regardless of where the content runs. If you used a song without a license, you infringed. The platform doesn't change that. You can't always get what you want.

What the platform changes is how easy you are to find. A social media post is public, searchable, and timestamped. Rights holders and their licensing teams monitor this actively. "Paint It Black" in a post about paint is not subtle. But even less obvious uses get caught regularly — automated content recognition tools do a lot of the work now.

What sync licensing actually involves

When you use music in any content that pairs audio with visuals — an ad, a promo video, a reel, a YouTube video — you typically need two separate licenses: one for the underlying musical composition (controlled by the publisher) and one for the specific recording (controlled by whoever owns the masters, which in the case of older Stones tracks is ABKCO). Miss either one and you've infringed.

The fees for well-known tracks are significant by design. Rights holders price them to reflect commercial value, and there's no "small use" discount for social media. There are royalty-free and licensed music platforms that offer affordable alternatives for creators who need music — that's the right path when budget is a constraint. Using a famous song and hoping nobody notices is not a strategy.

The takeaway

The Behr situation is a useful example precisely because it's not exotic. It's a mainstream brand, a recognizable song, a social media post. No one in that chain made a complicated IP decision — they made an obvious one and got it wrong. The settlement almost certainly cost more than a license would have.

If music is part of your content — ads, promos, videos, reels — know what you're licensed to use. If you're not sure, assume you need a license. If you're a brand working with agencies or marketing teams, make sure someone in the room is asking the licensing question before the post goes live.

The song is always owned by someone.

See you next time,

Hank

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About Hank's IP Brew

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