Ephemeral Uses

The copyright act provides for what are called “ephemeral” uses without the permission of the copyright owner. Ephemeral uses are generally “live” or “live tape delay” type uses where the exploitation is made spontaneously and the necessity of obtaining advance permission would place an undue or impossible burden on the user.

The only income the writer and publisher receive for an ephemeral use is performance income collected by ASCAP, BMI or SESAC.

Some recognized examples of ephemeral uses are the background broadcast use at a baseball or football game, news program uses, and parade broadcasts. Saturday Night LiveTonight Show With Jay Leno and The Late Show With David Letterman are also considered ephemeral uses for which no advance permission is legally required. (Note, however, once the original programs are re-broadcast [Best of Saturday Night Live or Best of Letterman] they are no longer ephemeral uses and the appropriate party must obtain a synchronization license!)

Finally, we get to the “grey” cases where producers claim to be ephemeral, but may not meet certain legal criteria. Many soap operas and many broadcast news magazines fall into this category of trying to squeak by as ephemeral.

If this matter is of sufficient concern to a client, we suggest that an attorney be involved to handle and examine the legal issues more thoroughly.