Substantial Similarity

During Sunday’s Superbowl broadcast, Fox made use of “No Cars Go,” a song from what I’d call the best Album of 2007, the Arcade Fire’s Neon Bible. You can see the clip here and here, although probably not for long.

As Pitchfork has reported,¹ Fox neither sought nor received permission from Win Butler and company for the use of the song. There are a few questions to ask here.

As Frank Pasquale asks, should a seemingly with-it young band refuse to buy into permission culture by taking legal action? Something in the power dynamic between an indie rock band and News Corp. inclines me to say that if there are ever appropriate circumstances to call on the coercive power of copyright law and the courts, this might be one of them. That is, if they had a case.

Call me doctrinal, but I’m more interested in the substance of Fox’s defense here.

Let’s start with the public performance. The public performance right in sound recordings is narrow. So as long as Fox isn’t providing a digital audio transmission, it is free to publicly perform “No Cars Go” just like your local radio station. Of course, Fox and its affiliates would need to make sure they are paid up with the performance rights agencies to cover the underlying rights in the composition. But I think we can assume they are okay on that front.

What about the copy Fox likely created when it added “No Cars Go” to its NFL promo? Fox relies, as they did a couple of years back when it made use of a track from famously anti-corporate D.C. hardcore outfit Minor Threat, on a statutory defense to copyright infringement. No, not fair use. Fox relies on the less frequently invoked Section 112 ephemeral recordings defense. If the statutory defenses of Title 17 are the Brady children, Section 112 is Cousin Oliver.

It provides in relevant part:

Notwithstanding the provisions of section 106 [17 USCS § 106], and except in the case of a motion picture or other audiovisual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license, including a statutory license under section 114(f) [17 USCS § 114(f)], or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114(a) [17 USCS § 114(a)], or for a transmitting organization that is a broadcast radio or television station licensed as such by the Federal Communications Commission and that makes a broadcast transmission of a performance of a sound recording in a digital format on a nonsubscription basis, to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display, if–

(A) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and

(B) the copy or phonorecord is used solely for the transmitting organization’s own transmissions within its local service area, or for purposes of archival preservation or security; and

(C) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.

Well, that explains it, right?

Section 112 says that a broadcaster can make a copy of a sound recording incidental to a broadcast transmission. So long as that copy is used solely for the organization’s own transmissions and is destroyed after 6 months, or preserved solely for archival purposes, the creation of that copy is not an infringement.

There is at least one lingering question here. Is Fox, who presumably created the promo, a transmitting organization? Individual Fox affiliates likely are since they do the transmitting. But maybe Fox looks more like a producer here than a broadcaster. See Agee v. Paramount Communs., 59 F.3d 317 (2d Cir. 1995) (holding that a producer was not eligible for the section 112 defense, but individual stations were). But the Agee case is distinguishable – the content was pre-recorded, and Paramount conceded that it was not a transmitting organization. So Fox looks to be on reasonably strong footing here.

I’ve been thinking about the simultaneous fixation provision lately. Typically a work is fixed “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” But since some would-be copyright holders broadcast live events, for example the Superbowl, that are not fixed under this definition at the time of broadcast, the Copyright Act fudges on the fixation requirement. A work that is being transmitted is fixed “if a fixation of the work is being made simultaneously with its transmission.” So if Fox is simultaneously recording and transmitting its broadcast, the Copyright Act permits the legal fiction that the entire work was fixed at the kickoff.

Now I’ll admit, I have some fundamental concerns about the simultaneous fixation rule. In fact, I have a sneaking suspicion that it’s unconstitutional. But more on that another day. More on point, something strikes me as more than a little unfair when we consider the juxtaposition of the simultaneous fixation rule and the ephemeral recording defense. Simultaneous fixation allows the NFL and Fox to assert full-fledged copyrights in the live broadcasts of games. They expect copyright law to avert its eyes to the rather inconvenient fact that these broadcasts are not fixed, but are ephemeral live performances. But in the next breath they ask copyright law to ignore the reproduction of the Arcade Fire’s song, in part, because that recording is incidental to an ephemeral broadcast. Maybe those positions are not strictly inconsistent, but it seems to me that the NFL and Fox have managed to have it both ways.

1. I sincerely hope I never have occasion to link to that publication again. [↩]