At first listen, songs like "Jingle Bells" and "Frosty the Snowman" seem to have a lot in common. They're both festive tunes perfect to belt out while caroling during the holidays. But if you dig deeper, you'll discover that "Jingle Bells" is public domain whereas "Frosty the Snowman" is still under copyright.
While this difference may not mean much to neighborhood carolers, it does for companies looking to add Christmas music into holiday marketing campaigns. Major corporations have legal departments to keep them well-versed in the music they can and cannot use in ad campaigns. However, many small businesses don't have the same resources and need to take extra precaution to avoid infringing on copyright. For entrepreneurs that want to add a jolly punch to their promotional materials this season, keep the following in mind when picking your musical accompaniment.
First, study copyright law to know when you can legally use holiday music in business.
Filing for a copyright means authors of "original works of authorship" receive a form of protection. Your original works are now available on public record. In nearly every country, works protected include literary works (books and letters), motion picture and audiovisual works (movies and TV programs), architectural works, dramatic works (plays and operas), graphic arts (photographs and sculptures), and musical works. According to copyright law, small businesses that want to use music in business must use music already in the public domain or pay to use it. Here's what you need to know about both options.
Public domain: The Public Domain Information Project states "Any song or musical work published in 1922 or earlier is in the Public Domain in the USA." Many holiday classics were written well before 1922, so small businesses don't have to worry about obtaining permission if the song of their choice falls into this category.
Paid music: For more contemporary songs like "Run Rudolph Run" that aren't in public domain, you will need a formal license. Actually, you might need two licenses in order to use the song commercially -- one for the copyright of the song and another for the recording of the song itself. Be aware if the piece of music you want to use requires an additional license.
If you're not using music for business...
This falls under fair use, where copyrighted material may be used without permission in limited amounts for certain circumstances. Fair use takes four factors into consideration in Section 107 of the Copyright Act -- purpose and character of the use, nature of the copyrighted work, amount used in relation to the work as a whole, and effect of the use. So, if you're not using music for a campaign but want to use it as part of your research or commentary, that activity may qualify for fair use.
Research songs considered public domain (and those that are not).
The Public Domain Information Project provides a list of Christmas public domain songs for anyone to peruse. Songs like the aforementioned "Jingle Bells," "Deck the Halls," "Auld Lang Syne," and many more can be found there. Others including "Have Yourself a Merry Little Christmas" and "White Christmas" are still under copyright. But what happens when those songs come to the end of their copyright term?
Keep up with the laws of copyright term timing.
In 1934, J. Fred Coots and Haven Gillespie penned what would later be the most performed holiday song of all time, "Santa Claus is Comin' to Town." This song would have been in public domain a long time ago, but it received protective copyright term extensions through the music publisher EMI.
Keeping up with copyright law and its terms is not the simplest thing to do, but luckily there are plenty of resources available to help entrepreneurs out. One helpful site is Cornell University's Copyright Information Center that serves as a resource for questions that anyone might have on copyright policy and clearance services. Information is available on their Copyright Term and the Public Domain in the United States page that defines the laws on timing for when original works are created and protected versus when they move into the public domain for free use.
Successful holiday marketing campaigns depend on doing due diligence. Determine the capacity the music will be used in and research to see if the song you want to use is available in public domain or if you need to pay to use it. And continue to stay up-to-date on songs with expiring copyright terms that will soon be added to public domain. Doing so ensures that your marketing materials can continue to make spirits merry and bright while keeping your business from infringing on any copyright terms.