The holidays are just around the corner, which means the Christmas songs we know and love are soon to be heard over and over again. No doubt about it, it’s the most wonderful time of the year when it comes to the holiday standbys about to permeate the airwaves.
The month of December is especially wonderful for the lucky few cashing in on the music that brings such joy to the world.
I don't want a lot for Christmas
There is just one thing I need
I don't care about the presents
Underneath the Christmas tree
That ubiquitous tune, “All I Want for Christmas Is You,” has earned Mariah Carey well in excess of $60 million since its release in 2011. And the rich get richer. In Ms. Carey’s case, her hit Christmas song is estimated to bring in another $600,000 or so between now and December 25th.
Beyond Mariah, the playlist of Christmas favorites raking in the dough for an array of other artists and music publishers alike is endless. Indeed, holiday songs are broadcast in a variety of formats seemingly everywhere, lining the pockets of copyright holders with royalties. Which begs the question: what are the legal ramifications for using these songs without a license to do so?
As a matter of law, the use of a copyrighted song for commercial purposes without the appropriate license exposes the unauthorized user to substantial liability for copyright infringement.
In the United States, every original work of authorship fixed in any tangible medium of expression is subject to copyright protection. This includes Christmas songs. That being said, copyrights don’t last forever. In fact, they expire 70 years after a given author’s death, after which the work in question becomes public domain and can be used without a license.
There are two distinct types of copyright that may apply to a holiday song written and performed since 1926 (note that in the U.S., works published before January 1 of that year are in the public domain): 1) the copyright in the musical work itself, and 2) the copyright in a sound recording of the song. To be clear, a copyright in a musical work embodies the right to the musical composition (read: the notes and lyrics of the song as they appear on sheet music). In contrast, a copyright in a sound recording (sometimes referred to as a “master recording”) contemplates the rights to a recorded performance of a musical work by a specific artist.
Take “Silent Night” for example. The music and lyrics of that beloved song were composed in 1818, and the authors passed away in the mid-1800s. Thus, because the writers have been dead for over 70 years (and since the song originated pre-1926), the sheet music and lyrics to “Silent Night” are in the public domain, meaning anyone can perform it without having to first obtain a license. And many have done just that. There are thousands of different sound recordings by various artists singing “Silent Night.” Bing Crosby recorded his memorable version in 1945. Much more recently, Carrie Underwood did the same in 2020.
Because Mr. Crosby died just 44 years ago and Ms. Underwood is alive and well, the applicable copyrights in these two renditions of “Silent Night” are still active. As such, anyone wanting to use Bing and Carrie’s recordings commercially would need to get a license to do so, which could be quite costly.
Works in the Public Domain
As mentioned, pre-1926 musical compositions and sounds recordings are in the public domain. Therefore, works originated in 1925 or earlier may be performed (musical composition) or broadcast (sound recording) without license. Likewise, a song written and recorded by a person that’s been dead for at least 70 years is also fair game. Nonetheless, the selection of holiday tunes that meet these criteria is slim. As a practical matter, then, most every Christmas song that an individual or business might want to play or otherwise use commercially is probably protected by a copyright.
The Takeaway for Those Seeking to Leverage Christmas Music for Commercial Purposes
For most of us, the soundtrack of the holiday season is played without controversy. That’s not necessarily true for those wanting to incorporate Christmas songs into their commercial endeavors such as radio and television advertisement, podcast breaks and even social media posts. For these people and businesses, licenses must be secured, assuming the works in question are copyright protected, which is likely the case.
Again, any unlicensed use of third-party music can be characterized as copyright infringement. And while perhaps inconsistent with the spirit of the holidays, unauthorized use of Christmas music in the U.S. can expose the infringer to up to $150,000 in statutory damages, plus additional damages such as attorney’s fees. Parenthetically, fair use is an affirmative defense to a copyright infringement claim. While beyond the scope of this article, the fair use doctrine promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.
Bottom line: for anyone looking to commercialize Christmas music owned by third-parties, be aware that the copyright holders, and not Santa Claus, will surely find out who's been naughty or nice.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.