Christmas, Copyright, and the Public Domain

We recently had a client mention an idea to us for spreading holiday cheer throughout their company this season – they planned to videotape employees singing holiday songs and place the videos on the company’s YouTube site. While this sounded like a pretty innocuous exercise (the kind of thing that people probably do all the time), the client sagely realized it didn't want to inadvertently select any songs that were still covered by copyright protection. Suing someone for singing a Christmas song sure sounds a little “Grinchy,” but it could happen.

First, a little background on copyright law. In brief, a copyright is a form of intellectual property protection “grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” These original “artistic” works include anything from novels, movies, and songs, to computer software and architecture. While many people believe works must be published or registered to be protected by copyright, this is not the case. A work is automatically protected under copyright the moment it is created and fixed in a tangible medium. 

When something is protected by copyright, the owner must give authorization in order for someone else legally to use the work (the “fair use doctrine” recognizes a limited exception – often more narrow than people understand – for minor quotes or samples used in scholarly articles, news reports, etc.) Desiring users who receive permission may have to pay royalties for the use, and unauthorized use could lead to a lawsuit.

So how does all of this apply to our client’s Christmas caroling plans? The protection provided by U.S. copyright law does not last forever. Our country’s rules attempt to balance the need to encourage and protect individual creativity with the benefits to society of free access to such creative output. Since the law has evolved over time, the matrix of potential expiration terms, depending on date of publication and placement of copyright notice, is confusing. In the U.S., published copyrighted works generally have entered the “public domain” (meaning their copyright privileges have expired) if they were created prior to 1923. As one might guess, this applies to many classic melodies.

So, how does your favorite tune stack up this year?

• “Jingle Bells”: Written by James Lord Pierpont and originally published and copyrighted under the title “One Horse Open Sleigh” in 1857. Result: Public Domain. 
• ”Deck the Halls”: A Welsh melody dating back to the sixteenth century, with lyrics likely American in origin dating from the late nineteenth century. Result: Public Domain. 
• “Silent Night”: Composed 1818 in Austria and published with an English translation in 1859 by John Freeman Young. Result: Public domain. 
• “Rudolph the Red-Nosed Reindeer”: Written by Johnny Marks in 1939 and famously recorded by Gene Autry and made #1 on the U.S. charts the week of Christmas 1949 (note, here, the music written by Marks and the recording by Autry are each separately copyrighted works). Result: neither is in the public domain. 
• “Frosty the Snowman”: Written by Walter “Jack” Rollins and Steve Nelson for Autry in 1950, after the success of “Rudolph” the year before. Result: NOT in the public domain. 
• “Have Yourself a Merry Little Christmas”: Written by Hugh Martin and Ralph Blane for the 1944 musical “Meet Me in St. Louis,” and more famously recorded in 1957 by Frank Sinatra. Result: NOT in the public domain. 

While Mr. Scrooge is unlikely to show up at your family holiday party with a summons and complaint because you decided to sing some carols, you should be careful if you’re planning to publish that video version of Uncle Albert’s rendition of a “modern” classic to the web...

A Post by Karen Wenzel, Guest Blogger