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EPHEMERAL USE AND PRODUCTION MUSIC: JUST THE FACTS

In the production music business, we tend to take sync fees for granted; we assume that if a client wants to use our music, they need to pay a synchronization fee and obtain a proper license. Yet from time to time there are situations that arise where clients claim that they can use our music without a license due to something called “Ephemeral Use”. Can shows like “Good Morning America”, “Today” and “SNL” really use our music for free? This article will endeavor to shed some light on this oft misunderstood topic.

What is Ephemeral Use?

First let’s start with a definition of the word “ephemeral”, which according to most dictionaries simply means “temporary”, “momentary” or “short-lived”. According to U.S. copyright law, copyright owners retain the exclusive right to copy and exploit their work, however the law does allow for “temporary” use of copyrighted material without permission of the copyright owner under certain circumstances, hence the exemption known as “Ephemeral Recordings”. In the production music business, this means that there are situations where a broadcaster can legally use your music without having to pay a synchronization fee.

What are some examples of legal Ephemeral Use of music?

In broadcasting, Ephemeral Use usually applies to a live transmission (or “live tape delay”) such as a live newscast or sporting event where it would be impossible or unduly burdensome for the broadcaster to obtain the necessary music clearances. The classic textbook example: if a newscast is covering a local parade and the marching band happens to be performing a copyrighted song in the background, the broadcaster is not obligated to clear this music. Another example: if during a live televised sporting event a commercial song starts playing over the stadium public address system, the broadcaster is not obligated to clear this music.  Of course, neither of these two examples is likely to pertain to production music.
More relevant to our industry is the fact that other live broadcasts such as morning news shows, late night talk shows, variety shows, telethons and awards shows will sometimes claim Ephemeral Use in lieu of paying a synchronization fee. Even though these shows are generally recorded for later rebroadcast, the initial broadcast can legally be considered “live” and Ephemeral Use can apply if the broadcaster makes only one “copy” of the work, doesn’t distribute it to any other outside entities, and destroys the copy within six months. While it may often be difficult or impossible for libraries to collect synchronization fees for the initial broadcast of such programs, there is no question about the fact that once these programs are rebroadcast synchronization fees are due and payable to the library or appropriate rights holders. Indeed, since virtually all programs these days are sooner or later destined to be rebroadcast and/or repurposed for multiple platforms (TV, cable, web, mobile, etc.), it is hard to see how anyone could make a convincing argument for Ephemeral Use with regard to production music beyond perhaps the initial live broadcast.

What are some examples of questionable claims of Ephemeral Use of music?

The great majority of television and radio programs are prerecorded and therefore Ephemeral Use does not apply. Ephemeral Use is sometimes questionably claimed for productions such as newsmagazines and soap operas which are generally prerecorded and therefore not eligible under this exemption. Ephemeral Use also does not apply in the case of interstitial usages such as promos or commercials since these are obviously not live broadcasts.
In addition, Ephemeral Use is a “safe harbor” that applies only to broadcasters; the exemption does not apply to other entities (such as studios, production houses or individual producers) that do not have the right to “transmit to the public a performance or display of the work”[1]. For example, in the 1995 case of Agee v. Paramount Communications Inc., the court ruled that Paramount’s music use in “Hard Copy” did not constitute Ephemeral Use since they were a program supplier and not a broadcaster [2]. This important distinction may in fact invalidate claims of Ephemeral Use in the case of certain live shows which incorporate pre-produced segments, bumpers or “pods” into their program since arguably the exemption is intended to shelter broadcasters only to the extent that they are acting as a “transmitting organization”; broadcasters are not necessarily covered when they are acting as a “producer” of prerecorded content. By way of example, if a live sportscast incorporates pre-produced segments profiling Olympic athletes, those segments may not necessarily be covered under the Ephemeral Recordings exemption. Needless to say, this is a highly nuanced “grey” area of copyright law which is subject to interpretation and you are well advised to obtain proper legal counsel before taking any action.

Does Ephemeral Use apply to radio broadcasters?

Yes. Similar to television, the Ephemeral Use provisions of the Copyright Act allow radio stations to utilize music in live broadcasts and make temporary copies of songs as needed to facilitate their broadcasts, provided that the above criteria are met. Practically speaking, however, Ephemeral Use in radio rarely applies to production music since the great majority of such music is used in productions that are prerecorded such as commercials, promos, PSA’s, programs and syndicated shows.

Are performing royalties paid for Ephemeral Use of music?

Yes. Whether or not a synchronization license is issued does not affect the payment of performance royalties. As long as the broadcaster reports the music usage to the PROs via cue sheets, the writer and publisher will be paid as usual.
In sum, the Ephemeral Recordings provision of the U.S. Copyright Act allows broadcasters to utilize music during a live broadcast, without permission of the copyright owner, as long as certain specific criteria are met. However this exemption applies only to the initial broadcast of a program; any reruns, rebroadcasts or repurposing of the original content are subject to normal synchronization fees. Finally, the exemption applies only to broadcasters (not to studios, production houses or other entities) and may not apply in cases where pre-produced content is incorporated into a live broadcast.
Ron Mendelsohn
July 18, 2012

Legal disclaimer: This blog has been established as a service for members and friends of the PMA. None of the information available in this blog should be viewed as a substitute for legal advice. Readers should consult with an attorney before invoking any of the benefits of, or making any claims regarding, the ephemeral recording provision and before taking any other action affecting their legal interests.