Will Your Wassailing Withstand a Copyright Challenge?

After Thanksgiving, ‘tis the season for Christmas carols. Whether it’s today’s hottest new talent piped over the speakers of the grocery store or a chorus of warbling carolers, the songs are largely the same. Why are there entire albums of the same holiday tunes? More specifically, how are people allowed to profit separately off the same songs, without paying royalties?

The answer lies in an understanding of what songs are in the “public domain,” and thus no longer subject to copyright protection. Whoever owns the copyright to a musical work is allowed to distribute, reproduce, perform, or use a musical work to create other works. If something is in the public domain, however, it means that no one claims copyright protection in it, and anyone can use it without having to ask permission or pay royalties.

How Does a Song Fall into the Public Domain?

Some things are inherently “public domain” work because copyright laws don’t protect the type or nature of the work; examples include song or album titles and descriptive catchphrases like “the Fabulous Four” or “the King of Pop.” This isn’t the case for the songs and musical arrangements themselves, though, which typically enjoy copyright protection upon their creation.

Songs lose their copyright protection and enter the public domain in three main ways:

  • the copyright expires naturally,
  • the copyright owner fails to properly register or renew his copyright protection, or
  • the copyright owner deliberately places it in the public domain (an act known as “dedication”).

Expiration of Copyrights

Generally, copyright protection begins at the time of the creation of a work (regardless of date of publication or distribution to the public) and, under current law, lasts for the life of an individual author plus 70 years. [1] For works originally belonging to a corporation, copyright protection expires 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, extends 95 years from their publication date.

Copyright protection has expired for all works published in the United States before 1923, so if the work was published in the U.S. before January 1, 1923, you are free to use it in the U.S. without permission.[2]

Before the 1998 Copyright Term Extension Act (CTEA), also known as the Sonny Bono Copyright Term Extension Act, copyright protections were much shorter. Since its passage, works made in 1923 or afterwards that were still protected by copyright in 1998 will not enter the public domain until 2019 or afterward (depending on the date they were created) unless the owner of the copyright deliberately releases them into the public domain. Some works created before January 1, 1978, but not published or registered for copyright until recently, may not enter the public domain by virtue of expiring copyright protection until the end of 2047.[3]

Most popular Christmas carols are very old, traditional hymns – and many others at least predate 1923. From “Bring a Torch, Jeanette Isabella” (circa 1553) through “Toyland” (circa 1903), most popular carols are in the public domain purely through the passage of time and the expiration of any copyright protections.[4] Classic standards like the Twelve Days of Christmas, Silent Night, and Jingle Bells are all in the public domain based on their age.

Failure to Properly Register or Renew

Many copyrighted works have fallen into the public domain by accident, when the holders of the copyright failed to comply with the complex and changing laws for registering or renewing their rights.

Under the 1909 Act (the governing law until the Copyright Act of 1976), an owner was entitled to two copyright terms: a 28-year initial term and a 28-year renewal term. However, a copyright owner needed to file an application for renewal before the 28th year expired; if he did not, the work entered the public domain. Under the 1976 Copyright Act, the renewal term was increased by 19 years to 47 (for a total protective life of 75 years from initial creation of the work). Copyrights already in their renewal term were automatically extended the extra 19 years, but those in their initial term still had to be renewed in their 28th year to gain the extended renewal term.

A 1992 amendment to the copyright law made renewals automatic for works published from 1964 through 1977, but before that, thousands of works published between 1923 and 1963 fell into the public domain by accident. If a copyright wasn’t properly renewed, it cannot be re-asserted – i.e., if you lose your copyrights, they are gone forever.[5] The classic holiday movie It’s a Wonderful Life is an example of a work that fell into the public domain because its copyright holders failed to renew the original film copyright (although subsequent litigation held that the “original story” and music remain under copyright protection, so its public domain status is effectively negated).[6]

Dedication

Some composers, writers, or musicians decide that they wish to allow anyone to use their composition without retaining any of their copyright privileges (which arise upon a work’s creation, whether or not it is published). If a work would otherwise be within its copyright term, in order to be “public domain,” its actual copyright holder can expressly designate work for the free use of the public.

A nonprofit organization called Creative Commons helps copyright owners dedicate their works to the public domain, either immediately or after retaining a limited term of exclusive use (14 or 28 years). Although the copyright statutes do not require you to file or register a dedication of your work (and the abrogation of your copyright), the U.S. Copyright Office will allow you to file a Statement of Abandonment expressing your intent.[7]

So How Do You Know What’s In The Public Domain?

If you’re thinking about performing a song and want to ensure you are complying with all applicable copyrights, you should do some research. Look up the date the song was first published and any renewals to see if it’s fallen into the public domain. As previously noted, the copyrights have expired for all songs published before 1923. Many Christmas songs are far older and thus assuredly in the public domain. For songs published after 1922, but before 1964, copyright protection may still exist, if an appropriate renewal was filed.

Copyright registration records are available online for all works registered in 1978 or after through the U.S. Copyright Office web site. You can also do online searches for copyrights renewed after 1950. Records of renewals of copyrights for works originally published between 1923 and 1949 are available in print form from the Copyright Office and catalogued in an official Catalog of Copyright Entries (CCE). There are also various private online databases that catalogue renewed works from this period. Many private institutions also have online databases of public domain works, including the Smithsonian.

There are excellent online resources through major copyright organizations including ASCAP and BMG to determine whether a particular carol, song, or musical arrangement is currently under copyright. If you find that a carol is under active copyright protection, the copyright owner must grant you permission (a “license”) to use the work. You should consult with an experienced copyright attorney if you need to determine the status of a potentially protected work or have questions about the licensing process.

 

The content of this legal blog is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. This blog is not legal advice and no attorney-client relationship created between you and Bristow-Ford Law or Susan Bristow-Ford. You should not act upon this information without seeking advice from a lawyer licensed in your own state or jurisdiction. No information herein should be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction and your use of this information is at your own risk. The information herein may not reflect the most current legal developments, verdicts or settlements and may be changed, improved, or updated without notice. Bristow-Ford Law or Susan Bristow-Ford is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

Written with the assistance of attorney Jamie Pfeiffer.



[1] The Copyright Term Extension Act (CTEA) of 1998, Pub.L. 105-298. See also Copyright Law of the United States, U.S. Register of Copyrights, Dec 2011. Web. 29 Nov 2015.

[2] Copyrights expire on December 31st of the applicable year, regardless of the day on which they arose.

[4]Christmas Public Domain Songs.” PD Info Public Domain Information Project. Haven Sound, Inc., 2015. Web. 29 Nov 2015.

[5] If a work’s original copyright was outside the U.S., however, different rules may apply. Many works originally published in other countries that were in the public domain for certain technical reasons had their copyrights restored on January 1, 1996 by the Uruguay Round Agreements Act (URAA), which implemented the General Agreement on Tariffs and Trade (GATT). (Pub. L. No. 103-465, 108 Stat. 4809, enacted December 8, 1994.)

[6] Bailey, Jonathan. “It’s a Wonderful (Copyright) Life.Plagiarism Today. Jonathan Bailey, 5 Dec 2013. Web. 29 Nov 2015.

[7]’No Rights Reserved’ Means Just What It Says.” Public Domain Sherpa. PublicDomainSherpa.com, 2015. Web. 29 Nov 2015.

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