The Swarm

February 04, 2008

Ephemeral Use: Arcade Fire join Minor Threat in Fox Sports' pantheon of indie "bumps"

TDS Editors

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.


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15 Comments

#1 O. Please says:

This ephemeral use law is such bunk. If the FOX producers thought highly enough of the song to use it as background music for one of their bumpers, then the band should be entitled to a fair piece of the millions of dollars FOX makes from the broadcast.

Our media is so much different today than when the law was passed in 1972. We need new media laws that fairly protect the interests of artists in addition to broadcasters.

Barack Obama 4 President!

#2 Matt says:

With 100 million viewers, their ASCAP/BMI check should be a nice suprise

#3 Murphman says:

When I heard the AF song I thought, Wow, someone at Fox has good taste. But now I realize they're just Thieves! Fox dies it again. How can you use someone's music on a broadcast to billions of people and NOT pay them? If you're a soul-less cretin, I guess!

#4 Nell says:

I heard it a few times before last night's game. I think it's the 'theme song' for one of their regular segments.

#5 as says:

I love the hypocrisy, if it was Justin Timberlake lawyers and the RIAA would be involved

#6 zippy says:

Even though they were'nt asked for permission, they'll get paid. I betcha they don't send the check back.

#7 Sync Licensor says:

This would be a true ephemeral use if Fox came back from commercial playing the song as a bump under a live shot of the field, players, broadcast crew, etc. In this case the song is being used under an editted and polished video package which makes it a SYNC!

#8 Alicia C. says:

I agree completely Sync Licensor. This isn't a '5 second clip', it's an edited video segment!

I thought when they said ephemeral it was literally a clip of the song, barely audible before going to the live show or something. But that's a full out bridge of their song, with pre-edited visuals. 'During a live broadcast' needs some deconstruction.

#9 not sure says:

Is that footage from the Super Bowl? if so, it was ediited on the spot, but if its older then that 19 second bit would have been pre-edited.

#10 Hopscotch Willlie says:

That was DEFINITELY live footage. The mason/blacksmith was on the field at the 40 yard line. I saw him.

#11 Jack says:

They get performance royalties for the song, as long as the footage is from the super bowl itself it is considered live. The "theory" is that for a live broadcast there is no time for a sync license to be issued, therefore you could only use pre-approved songs, therefore the director and crew would be severely limited in their "artistic" range.

Same rule goes for late night talk shows. Someone plays a cover on Leno or Letterman, the show doesn't need to go out and get a sync for it. Same rule, its not technically live, but is considered covered.

Don't like it write your congressman, good luck on that one. Also the Arcade Fire will get a VERY nice check for this one. Could be worse.

#12 su says:

Question on my mind is: what is the difference between "ephemeral use" and "fair use" ? I'm no legal expert, but the two concepts seem closely related, yet it would seem that people who may be ordinarily proponents of unpaid "fair use", still find unpaid "ephemeral use" to be problematic...? is this a case of applying similar concepts in different contexts?

p.s. the spots were clearly pre-produced ads as numerous folks have pointed out elsewhere. the spots were running prior to the event, for a while it seems. but i can't vouch for any of this as i don't have a TV and i am not a sports fan!

#13 mreasy says:

Actually their check might not be that awesome - the Super Bowl is obviously much huger, but some friends had a similar usage during NBC Wimbledon coverage, and their publishing royalties ended up at around $400.00. I'm not sure if royalties are even calculated on Nielsen ratings (vs. regular viewer share for that station/timeslot), but if they are, and 100 times as many people were watching the Superbowl, Arcade Fire would then be looking at around $40,000, which is a decent amount of cash, but you can guarantee that if Fox had asked to license the track for $40K, AF would have laughed in their faces. At this point in their career, AF are undoubtedly commanding $500K+ sync fees.

Regardless, AF end up with some fans who have never heard of "ephemeral use" laws thinking they sold out to FOX, of all networks - and they have no recourse.

#14 ac says:

Wouldn't that normally probably cover songs played in the arena during the live broadcasts? That's probably what it was made for...

#15 Dave says:

Like it or not, ephemeral license covers it in the instance when one person during a live broadcast simply hits the play button on any music source, while the video plays from a separate source.

It's used a LOT more often than most of you realize, but when it's not some indie darling that's being used, you don't notice. You assume that Generic Mainstream Sellout has been paid a hefty amount of money (they haven't) to give Greedy Corporate Entity permission to use their song.

They're getting royalties. They're not huge, but they exist. To my knowledge it's a percentage based on the amount of viewers, so even for the Super Bowl I think $40k for a snippet of music is a small estimate.

The rub, is that when you publish your music and you license it to an agency (BMI/ASCAP) you lose the right to be a whiny bitch about it if someone's willing to pay to use it under terms to which you can't disagree. Same as you can't tell someone they can't cover one of your songs, if you've published the song. You'll get royalties, but you lose control.

That's the whole point of royalties. If you want to change the musical license, you're talking about a fundamental overhaull of the entire system, and you're a very very small voice in a huge ocean of "we're fine with it".


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