Christmas is here! The holiday season brings festive traditions like decorating the Christmas tree, watching classic holiday movies, and celebrating with loved ones while sipping “coquito”. As the festivities begin, Christmas themed content dominates advertisements and cheerful Christmas music is everywhere. Amid all this holiday cheer, an important question tends to slip our minds: “Can I use a christmas song in my work without needing permission”? The short answer is: it depends.
What is Copyright?
As we’ve discussed in a previous blog post, Understanding Music Copyright: Protecting Creators and Their Work, the U.S. Copyright Act of 1976 protects original works of authorship fixed in a tangible medium of expression, including creative works like musical works. Copyright protection is granted for a limited duration, the length of the copyright term varies and is based on several factors. The copyright owner holds exclusive rights to use, reproduce, distribute, publish, perform, or otherwise economically exploit the work. Reproducing the work without the copyright owner’s authorization may constitute copyright infringement.
Composition v. Master
A musical composition (lyrics and melody), and a master recording (sound recording), are two separate works. Each, the composition and the master, has its own independent copyright protection, which means copyright terms may differ, including its copyright owners. To use and incorporate a Christmas song created by a third party, you must obtain authorization and a license (or licenses) from the song’s copyright owner(s).
Do I Need a License Agreement?
You probably do. Incorporating preexisting Christmas music into other works which involve moving images, such as advertisements, films, commercials, or online videos, requires authorization from the copyright owner, along with synchronization licenses for the musical composition and, if using a specific recording, master use licenses. The unauthorized use can lead to copyright infringement claims, with statutory damages up to $150,000.00 per infringement, unless they are in the public domain.
What is the Public Domain?
The countdown to Public Domain Day, an unofficial copyright holiday, has begun! On January 1, 2025, a new collection of creative works from 1929, as well as sound recordings made and published before that year, will enter the public domain in the United States. The term public domain, according to the Copyright Act, refers to works that are not protected by copyright law and are therefore free for anyone to use without obtaining permission or paying royalties. A work enters the public domain in the U.S. for several reasons including: expiration of copyright protection term, failure to comply with formalities, the creator deliberately puts the work in the public domain and no copyright protection at the time of creation. Works in the public domain can be freely copied, distributed, performed and adapted by anyone, without fear of copyright infringement. However, adaptations or modern versions of public domain works may still be copyrighted if they include new, creative elements.
How did Christmas Carols Enter the Public Domain?
Traditional carols, like "Silent Night" are in the public domain due to their year of creation (1818). This is because early Christmas songs were written before copyright laws became more formalized and often fall into the public domain. As mentioned above, the composition and the master recording of a song each have their own separate copyright protection. Consequently, some carols may have both the composition and the master recording in the public domain, while others might have only one of them in the public domain. Some examples of Christmas carols’ compositions in the public domain are “Jingle Bells” (1857) and “O’ Holy Night” (1847).
How to Determine If a Christmas Carol Is in the Public Domain?
To verify if a Christmas Carol is in the public domain, begin by researching and verifying the song’s original composition date to check if it qualifies for public domain status. Keep in mind that while the original composition may be in the public domain, certain arrangements or translations could still have copyright protection. This exercise may be tricky, due to the lack of accessible information and copyright law nuances, it is advisable to consult with an intellectual property attorney.
What Are Some Practical Implications of Using Christmas Music in Audiovisuals?
Businesses, content creators, and individuals can use Christmas music that is in the public domain in various ways for commercial projects. Public domain music can be freely adapted or used as background music. Alternatively, royalty-free music from libraries is another cost effective option. For copyrighted music, licensing is possible, but it also depends on the production’s budget and specific requirements.
Before using a musical work, it is crucial to research whether it is in the public domain or protected by copyright and to obtain the necessary licenses. Consult with legal professionals to ensure compliance with intellectual property laws when using Christmas music in commercial and media contexts. Planning ahead is essential, as identifying copyright owners and accessing musical catalogs, often managed by the artist, a music publisher or a record label, takes time. Securing authorization or license agreements involve lengthy negotiations, which could delay the Christmas production if not managed properly. It’s the season for good cheer, not copyright fear, so make sure your work is cleared!
About the Author
Natalia A. Ralat
Intellectual Property and Entertainment Attorney at The Sifre Group
Natalia A. Ralat Albors is an intellectual property and entertainment attorney at The Sifre Group dedicated to protecting the rights of creatives. Natalia is enthusiastic about novel issues transforming the intellectual property law landscape, such as artificial intelligence and digital technologies.
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