Can a broadcaster argue that pre-recording a performance of a performance necessarily include making an ephemeral recording of the performance?

Bishop v. Stevens was just such a case. In it, the broadcaster argued that the right to broadcast a performance necessarily included the right to make ephemeral recordings in support of the broadcasting activity. The broadcaster argued that pre-recording was virtually essential “to ensure the quality of broadcasts and to enable broadcasters to offer the same programming at convenient times across five different time zones”: see Bishop v. Stevens, at paragraph 23. This argument was rejected on the basis of the statutory distinction between the right to make a recording of a work and the right to perform that work.