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.