Who Owns Christmas?
Music Sets the Tone for the Holiday Season, but Who Does it Truly Benefit?
Holiday specials, films, public concerts, religious gatherings, shopping malls, and a generous serving of commercials: it’s that time of year again. As soon as Thanksgiving wraps up, the ubiquitous sound of Christmas music penetrates nearly every aspect of our lives. Though the holiday season looks significantly different this year, many opportunities still exist for artists to connect with their audience while generating value for themselves. To do so, however, they must first consider who owns the rights to perform and reproduce these classic holiday hits.
In this brief article, I explore the nature of Christmas music copyright and the public domain, as well as how artists can leverage these to express themselves and create novel, meaningful, and profitable fan experiences.
Market Share and Cultural Influence
First, let’s zoom out and examine the landscape that we hope to dissect. The Christmas market is massive, engaging a growing share of creators and listeners in some of the largest music territories across the world. The chart to the left gives us a sense of just how much this genre dominates our lives from late-November through December. In key music markets such as the United States, Germany, and Britain, Christmas music peaks in the 12–17% range of total music listened by Christmas day.
As of late-2014 on Spotify alone, it is estimated that nearly 1,000,000 distinct recordings of Christmas songs exist. These tracks represent roughly 180,000 unique songs and were created by about 64,000 artists. These numbers provide two key insights. First, that there has been a great deal of reproduction and re-recording of existing Christmas songs, and second, that a loud minority of creators have engaged with and benefited from their use. Christmas music is a proven commodity, though its heavy reproduction and covering opens the door for fresh voices with original material.
Christmas music’s role in film also cannot be understated. The following graphic highlights that, as of late 2015, IMDb’s top ten Christmas songs have been credited nearly 1,600 times and have an average release year of 1802. This underscores the role of music in films released around the holidays, even if they hold no thematic or plot connection to Christmas itself. The commonality in release date is also extremely interesting, with only one out of ten tracks written after the year 1900. We will unpack this unsurprising trend in the next section.
During a time in which many sectors of the music industry have stalled, the most recent wave of global lockdowns has only amplified this holiday trend. According to WARM, “Trending Christmas songs’ airplay count raised by 57% compared to last year as listeners turns to traditional hits to lessen the effects of the pandemic.” This speaks to the genre’s resilience and lack of correlation with normal market activity.
Copyright vs. Public Domain
This distinction is extremely important across all types of music, however, it proves even more crucial looking at the Christmas catalogue. At the most fundamental level, copyright is an agreement that exists between the author of some intellectual property and society as a whole. It states that, for a certain period of time, the author reserves the right to exclusively exploit or license their intellectual property as a reward for creating it. The rules vary between types of copyright and country of origin, but in the United States, copyrights for artistic works typically extend 70 years from the author’s death (if registered during or after 1978) or 95 years from creation if registered before. Most of the songs that we deal with in the Christmas catalogue were registered prior to 1978, so the rule of thumb is that songs released prior to 1925 now exist in the public domain.
According to Stanford University Libraries, “The term ‘public domain’ refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.” Looking once again through the lens of Christmas music, this means that artists can create their own interpretations and recordings of these works without any payment or licenses, however they will not own the underlying publishing material.
Why is this distinction so important relative to Christmas music in particular? Based on the unique intersection of traditional and religious themes with modern popular culture, we see a higher proportion of Christmas songs in the public domain than just about any other genre. This creates many opportunities and pitfalls in the entertainment space. As mentioned in the previous section, 90% of the most credited Christmas songs on IMDb exist in the public domain. This could be attributed to the lower licensing cost of these works, since the publishing side is essentially free, and the recording could be reproduced by a third-party artist or company. The seeming abundance of public domain music can also lead some artists to use tracks without proper vetting or clearance. Just last year, Dolly Parton’s theme park, Dollywood, was sued for unauthorized use of the “Charlie Brown Christmas” theme song.
In order to avoid such pitfalls, I would suggest that artists and their teams check out resources from CD Baby, Easy Song Licensing or others breaking down copyrighted and public domain Christmas music.
Opportunities for Artists
The increased fragmentation and personalization of how people consume has made it difficult to achieve a media monoculture, but the end-of-year holidays bring us closer to this phenomenon than just about any other annual event. Below we will explore a few strategies and examples that artists can follow to get the most out of this season.
Using the Public Domain
One clear option for artists is to cover Christmas songs in the public domain. This opens a wide set of alternatives, such as exercising their own creative license or incorporating songs into broader social campaigns. One recent example was The Lumineers’ cover of “Silent Night”, a song written in the early 1800’s, whose full streaming revenue is being donated to struggling independent venues.
One key aspect of this process is the free public use of an underlying song (lyrics, melody, chords) relative to new audio recordings and arrangements. Usually this distinction comes across clearly enough, but sometimes, with Christmas music in particular, a new arrangement of an older public domain song will still retain its publishing copyright and leave covering artists exposed to potential lawsuits.
Licensing Copyrighted Material
Another way to channel one’s artistic vision through an existing copyrighted song is to obtain a mechanical license. One of the most successful proponents of this approach has been Michael Bublé, whose Christmas albums containing both copyrighted and public domain holiday classics have gone platinum many times over. Another current example comes from the soul-pop group Lawrence, whose cover of “The Christmas Song (Chestnuts Roasting On An Open Fire)” was originally written in 1945 by Robert Wells and Mel Tormé and performed by Nat King Cole.
In general, this option is more frequently used by artists supported by a record label or other entity which can connect with the copyright owner and front the licensing fee. However, more resources exist than ever before for DIY artists to clear their own versions of copyrighted songs. In the U.S., a mechanical license can be obtained directly from the publisher who controls the copyright, from the Harry Fox Agency, or through a number of third-parties, such as TuneCore, Soundrop, and Easy Song Licensing.
(Note: This only applies to the release of new master recordings, if you plan to perform a cover live or as as part of a livestream, it encompasses an entirely separate bundle of rights.)
Create Your Own
One final way to engage artistically during the holidays is to create your own original themed music. This option exists at the highest and lowest ends of consumption, from Mariah Carey’s perennial smash “All I Want For Christmas is You” to production companies creating stock music for elevators. A few recent examples include Taylor Swift’s “Christmas Tree Farm”, The Jonas Brothers’ “Like It’s Christmas”, and Tyler, The Creator’s “I Am the Grinch”. Another interesting case comes from London-based duo HONNE crafting a Christmas cover of their own song “Warm on a Cold Night”. The pair rewrote and recorded their 2016 track to re-release as “Warm on a Christmas Night” with a video styled after their most recent album.
This option offers a double-edged sword of sorts. It provides artists with direct ownership of both the publishing and recording aspects of their work, while allowing for the sale of these rights (Carey’s “All I Want For Christmas is You” was just sold as part of one of the largest publishing acquisitions ever). On the other hand, this strategy relies heavily on an artist’s own clout and existing fanbase to drive success, as the song will lack the recognizability of a covered Christmas classic.
Since no one-size-fits-all approach exists, every artist should consider whether to engage in this holiday trend at all, and if so, what mix of covered vs. original material makes the most sense. Regardless, the underlying lessons of copyright and cover licenses are worth practicing and applying across all facets of one’s musical career.
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Jacob is a culture junkie, record label manager, and recent Masters recipient from Berklee’s Global Entertainment & Music Business program. Thank you to everyone who took the time to read through this, have a safe and happy holiday!
