Don’t Let a Lawsuit Drain Your Christmas Cheer: Holiday Music and the Public Domain

October 20, 2010{ 15 Comments }

iStock 000010303776XSmall1 300x300 Dont Let a Lawsuit Drain Your Christmas Cheer: Holiday Music and the Public Domain-This article was written by our friend Alex Holz and E.J. Dortch from Limelight.-

Christmas music has always been held in high regard by artists and listeners alike.  Unlike most other genres, Christmas music provides a confusing guessing game in determining if a Christmas carol or hymn is in the public domain (and therefore doesn’t require a mechanical license and royalty payments!)

Many will recognize these songs as staples of holiday cheer, and can easily hum the melody if not sing most of the words.  Most of these songs go back to the 1800’s with “We Wish You A Merry Christmas” and “The Twelve Days of Christmas” dating all the way back to the 1500’s.

One important point to remember: even though a song may be found in the public domain, a copyrighted arrangement of that song may not be, so always check first.  An excellent rule of thumb – if you used sheet music to learn it, you can find the copyright information there.

Here is a list of some top Christmas songs that are in the public domain

Christmas Songs in the public domain
•    “Deck The Halls”
•    “The First Noel”
•    “Hark, The Herald Angels Sing”
•    “Jingle Bells”
•    “Joy To The World”
•    “Come All Ye Faithful”
•    “Silent Night”
•    “The Twelve Days of Christmas”
•    “We Wish You A Merry Christmas”
Many classic Christmas songs that are presumed to be in the public domain are in fact copyrighted, so make sure to double-check your sources before deciding a track is public domain. PDInfo Online (www.pdinfo.com) is a good starting point if the liner notes and copyright information are unavailable.

Here are just a few notable songs that would require a mechanical license:

Christmas Songs NOT in the public domain
• “Winter Wonderland” (Written by: Felix Bernard, Richard B. Smith)
• “The Christmas Song (Chestnuts Roasting on an Open Fire)” (Mel Tormé, Robert Wells)
• “Sleigh Ride” (Leroy Anderson, Mitchell Parish)
• “Have Yourself A Merry Little Christmas” (Ralph Blane, Hugh Martin)
• “Santa Claus Is Coming To Town” (Fred Coots, Haven Gillespie)
• “White Christmas” (Irving Berlin)
• “Let It Snow! Let It Snow! Let It Snow!” (Sammy Cahn, Jule Styne)
• “Jingle Bell Rock” (Joseph Carleton Beal, James Ross Boothe)
• “Rudolph The Red Nosed Reindeer” (Johnny Marks)
• “Little Drummer Boy” (Katherine K. Davis, Henry V. Onorati, Harry Simeone)
• “It’s The Most Wonderful Time Of The Year” (Edward Pola, George Wyle)
• “I’ll Be Home For Christmas” (Walter Kent, Kim Gannon, Buck Ram)
• “Rockin’ Around The Christmas Tree” (Johnny Marks)
• “Silver Bells” (Jay Livingston, Ray Evans)
• “Feliz Navidad” (Jose Feliciano)
• “Frosty The Snowman” (Steve Nelson, Walter E. Rollins)
• “A Holly Jolly Christmas” (Johnny Marks)
• “Here Comes Santa Claus (Right Down Santa Claus Lane)” (Gene Autry, Oakley Haldeman)
• “Carol Of The Bells” (Peter J. Wilhousky, Mykola Leontovich)

Check out Limelight songclearance.com for the simplest way to clear cover songs.

  • George Nelson

    “Carol of the Bells” was written in 1916 and its publishing information is listed as “Free Art License.”

    • Concerned

      Up against this issue and wondering where you saw this ‘Free art license’. Thanks for a pointer.

  • http://www.examiner.com/x-36822-LA-Rock-Music-Examiner Diana Diaz

    If you speak Russian and come up with your own translation, you might be able to get Carol of the Bells out of copyright, however, the translation plus the arrangement = copyright.

    YIKES! I don’t know what I will do. Time is running out for getting all of this straightened out!

  • http://www.indiefolker.com Indie Folker

    I know, this was confusing to me as well. I decided to have my own Christmas album, with original songs. Of course, it’s a lot more work. :P Hope it will be worth it.

  • http://www.songclearance.com Alex Holz

    @Diana,

    If you need any assistance, you can always email me direct (alex@rightsflow.com) and we will gladly help you out. Are there any particular tunes you’re looking for that may/may not be public domain?

  • http://www.JeanetteAlexanderMusic.com Jeanette Alexander

    Thank you for the information. I am in the process of creating my Christmas CD and now I can easily see which songs I need to get mechanical licenses for and which ones I do not. So thank you for creating a list. Happy Holidays!

  • Clark Colborn

    Carol of the Bells is based on an old Ukrainian New Year’s carol called “Schedryk.” It is commonly accepted that it was written or adapted by Mykola Leontovych and first performed in Kiev in 1916, therefore the melody is in the public domain. The lyrics and certain arrangements of it have been copyrighted, but if you are performing an instrumental version of your own arrangement, you should not have to pay for a mechanical license. You may find versions where Peter Wilhousky or Morris Levy (or several other people) are listed as co-writer(s), but these are all versions with lyrics, and/or distinct arrangements. This particular tune is very popular, and it may be hard to claim any arrangement as truly “original.”

    If you want to just break down & pay the mechanicals, you can also go to harryfox.com and do it though them. They list about 22 versions which they can license.

  • Debbie Lawrence

    There is a song called What Are You Doing New Year’s Eve, I think. I want to include that on my holiday CD. It shouldn’t have surprised me but it did, that several of the songs I’ve chosen aren’t in the public domain.
    Thanks for this information.

  • http://dianastimmler.com Diana Stimmler

    So, what happens if you know some artists that didn’t get the mechanical license before they did the album?

    • Chris R. at CD Baby

      Santa puts lumps of coal in their stockings for not following proper licensing procedures. The artist COULD be forced to cease selling that song and be pursued legally for further damages. Well, let me rephrase. If the publisher found out and cared to take action, the power is completely in their hands. Always always always secure your mechanical licenses BEFORE you begin distributing a song.

  • Diana

    @Clark Colborn If you are taking the tune only and then giving it to instruments, then it may well be an original arrangement as the folk tune itself is in the public domain.

    As for which arrangement belongs to whom, it all depends on how it’s harmonized in the voices.

    @Diana Stimler if you recorded and it’s for personal use in your own home, I’m not sure that anyone would care. That’s akin to gathering around the piano and singing through some songs.

    As soon as you sell it, you owe royalties. If it plays on radio or at a restaurant or anywhere, you owe royalties.

  • http://incaseyouneverheard.com Oh!Kelly

    we three kings?

  • Trevor

    What about if we did a new instrumental arrangement (for strings) of Carol Of The Bells?

    • http://www.facebook.com/profile.php?id=1313611206 Qaz Wiz

      nope

      carol of the bells is copyrighted so you need permission for cover and derivatives
      and actually a cover is easier than a new arrangement that may be considered derivative… compulsory licenses are available for cover recordings but changing the arrangement too much will put it into the category of derivative which needs a negotiated license

      (you need to consult an attorney to decide if it will be considered a cover or a derivative)

  • Josiesocks

    I uploaded a video recently to Facebook which contained the Christmas song “Feliz Navidad” by Jose Feliciano and Facebook removed it on copyright grounds. The ecard company whom I purchased the video from said they reserved copyright and the ecard could be uploaded to social network sites,they said when I contacted them regarding Facebook removing my video “We originally licensed the music used in the video; however, the music licensing company can remove the music they own from videos uploaded to Facebook” so do you know anyway around this issue? Can I pay the $15 to Limelight songclearance.com to clear this for Facebook viewing?