The Arcade Fire’s Choice: Free Culture or Fox Fight?

arcadefire3.jpgYesterday’s SuperBowl was a real reversal for me–the game was great, and the ads were about as bad as the Miller High Life Delivery Guy suggests. Admittedly, there was a rousing Arcade Fire song, No Cars Go, in an NFL on Fox ad. Amy Phillips notes:

[W]ould Win, Regine, and the gang really sell their music to Rupert Murdoch so that he could advertise his football television program? No, . . . they wouldn’t. Turns out Fox never even asked the band if they could use their song, and they certainly weren’t given permission to do so.

Looks like Fox is starting a pattern of “don’t ask, just sell.” Which raises interesting questions for TAF. They might just shrug off the potential copyright infringement suit, perhaps inspired by Cory Doctorow’s critique of permissions culture. But if they do so, they run the risk of appearing to endorse Fox’s appropriation of their work.

I don’t know how to resolve the dilemma, but it is good to see legal scholars working at the intersection of copyright and trademark law who are trying to untangle these types of rights. Greg Lastowka has written an interesting piece on rights to “digital attribution.” Perhaps a truly “free culture” also requires a right to annotation or disavowal–so that uberhip TAF needs neither to associate with Fox nor to send it a C&D letter. Borrowing from the trademark context, maybe Fox should be required to do some “corrective advertising” if TAF so demands.

Photo Credit: AJ, Arcade Fire Concert.

UPDATE: Here is a copy of the ad; here is a take on Fox’s potential “ephemeral recordings” defense.

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