Posted in music | video on February 4, 2008

The Daily Swarm points out that Fox Sports' unapproved use of the Arcade Fire song is perfectly legal. Video of the clip in question below....



Comments (15)

Ironically, uploading that clip to YouTube is a copyright violation.

Posted by Anonymous | February 4, 2008 4:40 PM

wow...i never thought id be happy to support fox over the arcade fire.

Posted by Anonymous | February 4, 2008 5:27 PM

I still don't understand how it's "ephemeral use" if FOX used it repeatedly during the post-season (which it was).

Posted by tahlia | February 4, 2008 5:29 PM

wow... somebody at P4k actually watched the superbowl.

Posted by Anonymous | February 4, 2008 5:39 PM

I don't believe that's the proper interpretation of ephemeral use -

The copyright act provides for what are called "ephemeral" uses without the permission of the copyright owner. Ephemeral uses are generally "live" or "live tape delay" type uses where the exploitation is made spontaneously and the necessity of obtaining advance permission would place an undue or impossible burden on the user.

I can see how the law would protect a network broadcasting an event where someone was playing arcade fire out of their boombox & it ended up in the broadcast, for example, but this was NOT a situation where they couldn't obtain advance permission. Those bumpers aren't thrown together in real time... months & months of planning and editing goes into that. If musicians could hire some real lawyers, they'd win this one, imo.

Posted by Anonymous | February 4, 2008 6:47 PM

Thats not a proper of ephemeral use at all, a term I know quite well since I work in television licensing, specifically in sports (no not the NFL, and not with FOX). This is clearly an edited piece, anyone who thinks otherwise is an idiot. A clear example of ephemeral use is the music that is played over the house system while a boxer is walking to the ring. If someone were to license that clip of the boxer walking out, and you could make out the music in the background, that is ephemeral use. It would be impossible to cut out that music without messing up the audio of the audience, ring announcer, etc.

Posted by Anonymous | February 4, 2008 7:18 PM

They play clips of bands going into commercial's all the time....They did this with Fugazi last year and dischord contacted Fox or whatever station it was and was told this happens all the time and is legal.

Posted by Anonymous | February 4, 2008 8:52 PM

First, I thought the clip was pretty cool when I saw it on during the live telecast.

Sescond, why not enjoy the free advertising they're clearly getting out of just making a stink about it?

Third, my post of "Arcade Fire. Now Win." immediately after it aired was clearly lost on Patriots fans.

Posted by Anonymous | February 5, 2008 6:20 AM

So Anon 8:52, sounds like you agree with me (anon 7:18) on ephemeral use?

Posted by Anonymous | February 5, 2008 10:46 AM

Of course its not ephemeral use, its not even close. The continued use of a song snippet on a promo/bumper/ad-pad without compensation to the publisher of the song is just about as plain a usage violation as there can be. There's no justification that Arcade Fire got "free publicity", which I'm sure they're not against. They didn't get paid for a commercial use of their song, and for that they certainly have a very viable complaint.

Am I the only one to see the sick irony of this entire affair? Entertainment arm of mega-corporation affiliated with Big 4 Record Company "steals" song without compensation for a clear commercial usage and claims its perfectly legal. Meanwhile same said corporation joins suit to drag grandmothers, single mothers and college kids into court to pay for non-commercial usage of songs.

Posted by nyctaper | February 5, 2008 11:16 AM

de minimis use would be a better argument for Fox, though still not necessarily a winning one.

Posted by Duke | February 5, 2008 1:55 PM

nyctaper: Which Big 4 recording company is News Corp. "affiliated" with, and how?

Posted by Anonymous | February 5, 2008 2:32 PM

you might want to get your legal advice from a lawyer, instead of from some blog. in any case, the law is never really that cut and dry. that's why the court system exists. unless there is a proven case history to point towards, then i'm not so sure anything fox claims it has the right to do is any more or less a point of conjecture on their part, than anything anyone else says in this space.

Posted by Anonymous | February 5, 2008 3:20 PM

News Corp is affiliated with Warner Music in any number of ways. Without even getting into the inextricable contractual relations between the two companies where hundreds of Fox channels are carried nationally and internationally by Time Warner cable, there are a number of specific affiliations. Here are two:

Rupert Murdoch (News Corp) and the late Ahmet Ertegun (Atlantic Records Group, a division of Warner Music Group - a Big 4 company) were partners in several media enterprises.

Fox also purchased several Australian record labels, including Festival Records (which was run by Murdoch's son), that have now merged and re-merged into Warner Music labels.

Posted by nyctaper | February 5, 2008 3:33 PM

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