With festive songs from years gone by playing on the radio and familiar family films returning to our television screens, many of us are ready for Christmas. It is no secret that many businesses have spent months, if not the whole year, readying themselves for the holiday season, which is one of the key events in their annual sales cycle. Indeed, it is thanks to strategic commercial planning on the part of businesses that many of these films, songs and books which we enjoy during the Christmas period make a return year after year. This strategic forethought almost always involves IP protection, including trade marks and copyright.
Some of the most memorable songs like Irving Berlin’s “White Christmas” first released in 1942 and Johnny Marks’ “Rudolph The Red Nosed Reindeer”, composed in 1949, have long histories, in which copyright and trade marks play key roles.
Copyright and trade marks are closely associated but protect different legal rights. In legal speak, copyright serves to protect original literary and artistic works from unauthorised copying; trade marks seek to guarantee the commercial origin of particular goods and services. This distinguishes those goods and services from their competitors’.
As far as songs are concerned, copyright may be used to protect the lyrics and melody of the song, together with any original recordings and arrangements of that song. Anyone reproducing those lyrics, melodies, recordings or arrangements, without the consent of the copyright owner, will infringe the copyright. Trade marks, on the other hand, may be used to protect the song title or any particularly memorable lines from the song lyrics; indeed, in some cases, particular note sequences or musical phrases may be protected as trade marks. Anyone using a similar trade mark in the course of trade, in relation to goods such as those for which the trade marks are recognised or registered, will infringe the mark.
The authors of “White Christmas” and “Rudolph The Red Nosed Reindeer” died some years ago, but copyright over the songs remains for a period of 70 years following their death – like other property the copyright simply passes under each author’s will to their beneficiaries. In order to reproduce the songs, or distribute recordings of the songs for commercial purposes, without infringing the copyright, licences need to be sought from and royalties need to be paid to the current copyright owners.
Equally, the copyright owners of each song have also registered a number of trade marks protecting elements of the songs, covering the types of goods that you would usually associate with Christmas, such as toys, Christmas decorations, clothing and confectionery. For instance, the trade mark “White Christmas” is protected in relation to snow globes, which means that anyone selling those goods under that mark, without the consent of the trade mark owner, will be infringing their IP.
“White Christmas” has also been exploited with the creation of a stage show, capitalising not only on the copyright in the song and its lyrics, but also in the trade marks registered in relation to entertainment services. Now a firm festive favourite, “White Christmas” clearly continues to be a Yuletide money spinner – royalties from this song are in excess of £24 million.
The IP protection covering these songs results in the owners of those IP rights enjoying substantial income from royalty payments due under the rights. For instance, the rights in “Rudolph The Red-Nosed Reindeer” remain vested in the company set up by Johnny Marks, the author of the song, St. Nicholas Music Inc. This means that substantial sums are still received by the company from commercial exploitation of the song, in fact Christmas songs make up three of the “top ten highest earning songs of all time”. Whilst it may be a cutsey snowman or a suspiciously red-nosed reindeer that capture the hearts of millions, it is not the characters alone that actually make millions.
Whilst it always difficult to predict which Christmas songs will capture the public’s imagination and remain annual favourites during their lifetime and beyond, when a song writer does have a hit, copyright and trade marks will be there to protect their songs and lyrics from unlawful reproduction. This ensures that they continue to generate income for the rights owners for years to come.