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.