From the vaults: licensing notes from leisa korn for 8/8/2011

posted in: Music Rights & Licensing | 0

Several people have asked me lately to explain “ephemeral use”…and they have asked me more than once so I am going to simplify this as best I can.

e·phem·er·al/əˈfem(ə)rəl/  Noun: An ephemeral shooting star. Adjective: Lasting for a very short time: “fashions are ephemeral”…and so are some uses of music in broadcast.

Let me start with a couple of examples…a news reporter is doing a live feed from Malibu beach during a surfing competition…surf music is blaring in the background and people are moving to the beat. That same reporter is later broadcasting from a local bar and music is heard in the background. Because this type of use is caught spontaneously and is “live” or “live tape,” it is considered ephemeral and this means that the broadcaster does not need to obtain a synchronization license from the copyright owner. Other recognized examples are background broadcasts at sporting events or parades and some news magazine shows.

The copyright act allows this under TITLE 17 > CHAPTER 1 > § 112 (Limitations on exclusive rights) “so as not to place the burden of an impossible advance clearance on the broadcaster.” If the broadcaster makes copies of the music for archival purposes or makes copies of it for other purposes, the broadcaster would then need to obtain a synchronization license.bmi logo

The good news part of ephemeral use is that performance income is still payable to the writer and publisher by ASCAP, BMI and SESAC.

This is a very basic explanation. If you need further information on ephemeral use, I suggest you seek the advice of an attorney who specializes in copyright law and try not to let the attorney make the definition more complicated than it really is!

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