Music Publishing and Licensing Blog

The facts on Ephemeral Music Use

Recently one of our Music Publishing And Licensing group members, Ron Mendelsohn, CEO at Megatrax Production Music, posted an interesting discussion about Ephermeral Music Use. His leading question in the discussion title was: “Can shows like ‘Good Morning America’, ‘Today’ and ‘Saturday Night Live’ really use your music for free? Ron asked our members to read about the facts on Ephemeral Music Use in his recent article and welcomed their feedback and comments.

This article points out some of the highlights of this discussion and provides links were you can learn more.

First, lets start with a brief definition of “ephemeral”, which means temporary, momentary or short-lived according to most dictionaries.

And though U.S. copyright law lets copyright owners retain the exclusive right to copy and exploit their work, the law does however 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 music without having to pay a synchronization fee. Such usage is normally confined to live broadcast which uses incidental background music which was not produced (in advance) or pre-recorded for subsequent, scheduled broadcast.

For complete details, see Ron’s original article posted on his website:
Ephemeral Use and Production Music: Just the Facts- UPDATED

Summary (quote) of the article’s main points:

“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.”

One of our members, Robert S., asked several questions:

“Do broadcasters sometimes try to “sneak in under the radar” with bumpers and other subtle uses of tracks? I’m thinking of instrumental intro’s to songs in which they use only four or eight bars and turn it into a loop that simply repeats. Sometimes the track is recognizable and sometimes it might be a vague, simple blues progression (but from a song that once had airplay). Or do they report such uses and it comes under a blanket licensing fee?”

Ron Mendelsohn answered:
“In our experience, broadcasters are generally good about reporting, whether it’s a full cue or a bumper. Whether this is a needledrop fee or part of a blanket depends on the deal you have with the broadcaster.”

Ron’s reply to a question about sync fees:
“Regarding sync fees, I can assure you that these are very much alive and well in the production music industry, and I would encourage you and everyone else to maintain the value of your music instead of giving it away.”

To read the complete article, follow the link (above) which goes to the Megatrax blog page. To read all discussion comments on the Music PAL group, follow the link at top. If you are not a member yet, please be sure to request membership. Inside the group, go to the “Search” page to search for the article by keywords such as “facts on ephemeral music use”, which is part of the discussion title. It will show up with the article title and link, which will take you directly to the Discussion as originally posted in August, 2012.

If  you have any questions or comments, you are welcome to post them on this Discussion for review from the rest of the members.

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