While Pitchfork was first to point out Fox’s use of Arcade Fire during the Super Bowl broadcast (“some kind of important televised sporting event happened earlier this evening” that they, too, were watching) and NME quickly cried out for a lawsuit, a quick look at the copyright law books shows that the odds of Win Butler and Co. having any recourse – legal, financial, or otherwise – are slim to none. The reason: ’ephemeral use.’ Just ask Aphex Twin. Or Ian MacKaye.
In fact, the Arcade Fire aren’t the first band with an indie ethic to get “bumped” by Fox Sports.
As reported on EconoCulture back in 2005:
Fans of the Philadelphia Eagles had little to cheer about after their team’s 49–21 loss to the Denver Broncos this past Sunday. Fans of Minor Threat—the seminal DC-based punk outfit as renowned for its uncompromising DIY ethics as its electrifying take on hardcore—were in no mood to celebrate either: one of the band’s songs was played during Fox’s very above-ground, very corporate broadcast of the game.
“[T]hey came back from a commercial and there was a ‘sounder’ or ‘buffer’ before they returned to broadcast,” said Christopher Geary, posting under the username “the$inmusicisallmine” on the Chicago-based internet forum Electrical Audio. “And they showed a bunch of football stuff. And the soundtrack was ‘Salad Days’ by Minor Threat.” Word of the sacrilege quickly spread – twenty responses to Geary’s original message were posted in a little over twenty-four hours. Dischord Records, Minor Threat’s fiercely independent label, was inundated with queries about the incident.
“It’s not confirmed, but we got twenty emails about it,” said Alec Bourgeois, who handles promotions at Dischord. Bourgeois was quick to point out that the band had not given permission for its song to be broadcast. “They did not contact the label…I think it is sleazy,” he said.
Lou D’Ermilio, Fox’s Senior Vice President for Media Relations, confirmed that a Minor Threat “bumper” was used coming out of commercial into the second quarter, and was not shy about a producer’s right to utilize the material.
“We did use a clip of one of their songs,” D’Ermilio said. He claims that Fox was well within its rights, and cites the 1972 Copyright Act’s delineation of ephemeral use—the one-time use of copyrighted material during a live broadcast—as his backup. According to D’Ermilio, ephemeral use is legal under this statute. “[It] was only on for five seconds…[and was] a credibly short snippet,” he said.