During this time of the year you are either loving holiday songs or if you hear another one you are going to bang your head against the wall. Not to worry, the holiday season will be here and gone before you know it. Or if you can’t get enough, why not play holiday music year round? People may give you looks, but it’s definitely a respect-worthy personal music choice.
A big thank you goes from all of us to the staff of Time Magazine for looking through US Copyright Office digitized records going back to 1978. They discovered that since that year the song “Silent Night,” …is not merely the most popular carol; with 733 copyrighted recordings since 1978, it is nearly twice as dominant as “Joy to the World,” a distant second with 391 records to its name. http://time.com/3613551/christmas-song/. Note, this is not a full history as this project only went with digitized records.
The Fair Use Doctrine is an essential part of Copyright Law because it balances the interest of the public with copyright owners’ rights. By permitting limited use of copyrighted material and without asking permission of the rights holder, the public essentially can enjoy otherwise protected things. Fair Use does not mean you can claim the work as your own. It does not take away the creator’s rights in the work. And, you must give attribution to the copyright owner of the work.
Public Domain works are those that that are not protected by copyright laws because either they were never copyrighted or the copyright expired. Music is considered to be in the public domain if it meets any of the following criteria:
- all rights have expired
- the authors have explicitly put a work into the public domain
- there never were copyrights. https://en.wikipedia.org/wiki/Public_domain_music
Cornell in New York put together this great resource table showing copyright terms, public domain usage, and applicable years to applicable rules. http://copyright.cornell.edu/resources/publicdomain.cfm
And not that every time we sing a Christmas song we give deference to the rights holder, but it’s interesting to learn who wrote certain songs and where they stand in the IP world. So songs that are not in the public domain can-not be reproduced, performed in public, or distributed….But wait then how are we singing them in malls and school holiday shows alike? They most likely fall inter the “fair use doctrine” category.
Here are some examples of Christmas Songs NOT in the PUBLIC DOMAIN:
“All I Want For Christmas Is My Two Front Teeth” (Donald Yetter Gardner)
“Do You Hear What I Hear?” (Noel Regney, Gloria Shayne Baker)
“Santa Claus Is Coming To Town” (Fred Coots, Haven Gillespie)
“A Holly Jolly Christmas” (Johnny Marks)
“Carol Of The Bells” (Peter J. Wilhousky, Mykola Leontovich)
And, here are some examples of songs ARE in the PUBLIC DOMAIN:
“Angels We Have Heard On High”
“Away In A Manger”
“Deck The Halls”
“God Rest Ye Merry Gentlemen”
“Good King Wenceslas”
Hopefully this blog gives more clarity and less confusion. Remember that there’s also a difference of singing one of these songs with friends vs. using it in a car commercial. If you are planning to record your own Christmas album, you would have an easier time recording songs on the public domain list. Not to say you couldn’t record the others, you would just need to give attribution, seek permission, and of course give deference.
At Mohr IP Law we sing holiday songs in our office, car, and shower. However, we manage the volume because the greatest gift is love, not tone deaf vocals. Contact us today for all of your intellectual property protection needs. Know someone who has always wanted to file a patent, trademark, copyright, or all three? Why not give the gift of intellectual property protection to a friend or family member this year.