The weather turned colder, houses glow with lights, and while we may not have all the presents under the tree yet, the holiday parties are in full swing. Idle party chatter of IP lawyers at Christmas time often turns to issues of holiday trademarks and copyrights, so we thought we’d share a few IP holiday fun facts with you.
While we tend to think of Christmas carols as songs that belong to everyone (in the “public domain”), that’s really not the case. For example, copyright protects White Christmas and Rudolph the Red Nosed Reindeer, both written in the 1940’s, and Frosty the Snowman, written in the 1950s. So, as we discussed on Everyday IP, if your band plans to play those carols in a public performance, make sure you get a license.
Of course copyright protection for these songs doesn’t mean that you cannot sing them with your family around the Christmas tree or at your office holiday party. While only a copyright holder can make or license others to make a “public performance” of her or his copyrighted song, courts do not consider private gatherings of family and friends “public performances” under the law. In other words, you can’t use copyright as an excuse to stop Aunt Sylvia from belting out an off-key version of Frosty after too much eggnog. Sorry!
Other carols, like Silent Night, Deck the Halls, and Jingle Bells are public domain in terms of the lyrics and original arrangements. But copyright protects sound recordings made of those songs from 1972 on. So, while your band can play those songs all you want in public performance, you cannot play your favorite recorded versions of those songs in your restaurant without getting a license.
We like to think of Rudolph and Frosty as lovable characters that belong to us all. But really, those characters are not hundreds-year-old public domain characters but modern day creations of sharp marketers.
In 1939, an advertising copywriter for Montgomery Ward named Robert May wrote a poem about a little reindeer with a shiny red nose for a brochure given to holiday shoppers. May kept the rights to the poem and its central character. Years later, his brother-in-law turned the poem into the song we know today. May created a company to license the copyright and trademark rights to Rudolph, which it does to this day.
Inspired by the popularity (and economic strength) of Rudolph, songwriters for Warner Brothers in the 1950s created the Frosty the Snowman song we know today. In 1969, Rankin & Bass made the animated television show that became must-see family holiday viewing. To this day, Warner Brothers holds the rights to the song and Classic Media (a division of Dreamworks) holds the rights to the animated character.
If you are like me, you remember watching “It’s A Wonderful Life” over and over on multiple broadcast television stations every December (back when we only had a handful of channels and you had to get off the couch to change among them). That changed and now that holiday classic appears less frequently and only on NBC-owned channels (like USA). So what gives?
Well, Republic Pictures made the movie in 1946. Existing copyright law protected it for 28 years. Republic could have renewed that protection for another 28 years, but did not. The movie fell into the public domain in 1974. Although the movie was not particularly popular in its first run, broadcasters eager for cheap programming for the holidays aired it so much that it became a holiday tradition in the ensuing twenty years.
In the 1990s, the Supreme Court in an unrelated copyright dispute held that the holder of a copyright on a story also had rights in the movie based on the story. Thereafter, Republic secured the rights in the short story on which they based “It’s A Wonderful Life” and also secured the separate rights to the music in the film. Because of those acquisitions, even though the film itself is technically in the public domain, Republic can prevent its airing by asserting its copyrights in the story and the music. In 1994, the endless movie marathons of the seventies and eighties came to an end when Republic signed a deal granting NBC exclusive licenses to broadcast the story and the music. So check your local listings if you want to see George Bailey and Clarence the Angel this year.