Carols by Copyright

Article written by: Sue Ironside    |   Thursday 13th December 2012

In the run up till Christmas, marketing teams are frantically busy developing products and advertising campaigns centred on exploiting the festive season and all of its financial opportunities.

In order to fuel the spending, businesses invariably spend money on campaigns that involve the well-known Christmas music that we are all familiar with.

From an intellectual property perspective, it is very important that these rights are understood and recognised, and that businesses do not find themselves in hot water over the use of these well-known songs, that are seemingly in the public domain.

Before using them, it is important to first determine which recordings can be used freely, and which may require a licence.  A basic understanding of the song owners’ rights can save retailers this Christmas from getting pinged for creating un-licensed associations, and benefitting from others’ creations.

Therefore any business that plays carols to entice or enhance its customers experience should be aware of its responsibilities, particularly from a copyright perspective.

Legal Position

Copyright protection is far-ranging and lasts for a long period of time. For instance, for literary, dramatic, artistic and musical works, copyright protection in New Zealand is calculated as the life of the author, plus 50 years from the end of the year in which the author of the particular work dies (Section 22). This would include any lyrics recorded in the composition of that song under a literary work.

On the other hand, copyright protection for sound recordings and film runs for 50 years from the end of the calendar year in which the work was made lawfully available to the public (Section 23).

Copyright exists automatically in the original sound recording, and the owner of the sound recording (e.g. the recording label or artist) has the exclusive right to use or licence a number of restricted acts in relation to the sound recordings. These restricted acts include the exclusive right to play or communicate the work in public. 

Licence Fees

Essentially, there may be two licence fees every time you wish to play music in the public arena in order to satisfy the copyright requirements under the Act.

One is for the copyright in the song, being the composition and/or lyrics by the songwriter or composer. This is administered by the Australasian Performing Rights Association (APRA) which grants licences for the broadcast of public performance rights in the musical work and distributes licence fees to the songwriters.

The other copyright is for the recorded version of the musical work by a recording artist (e.g. record label). This is administered by Phonographic Performances of New Zealand (PPNZ). PPNZ grants licences for the broadcast and public performance of recordings and distributes licence fees to record labels as well as directly to registered New Zealand recording artists.

Public performance

A public performance takes place any time a carol or song is played in a non-domestic setting. This also prevents businesses that have legally purchased an album, from playing the album in a public environment. For example, a business owner such as a retail store would be prevented from purchasing “Mariah Carey – Merry Christmas”, and blasting this from within the store and on any outdoor speakers to attract customers, without first obtaining licences.

Examples

Many Christmas carols are now in the public domain because they were published so long ago that copyright has expired or protection did not exist at the time they were written.  For instance ‘Silent Night’, a poem written by Austrian priest Father Joseph Mohr and composed into the melody we know today by Austrian headmaster Franz Xavier Gruber, was first published in 1816. Another example is ‘Joy to the World’, which was first published as a hymn in 1719 by Isaac Watts, and adapted and arranged into music by Lowell Mason in 1939.  However, while the copyright in the composition of the song may have expired, it is likely that any recording of Silent Night or Joy to the World that you would listen to today will have been more recently re-recorded, and will therefore still be subject to copyright.

Penalties

Under the Copyright Act, a person infringes copying in a sound recording when that person plays the recording in public without a licence. The New Zealand copyright Act 1994, stipulates a maximum fine of $150,000 and/or up to 5 years imprisonment for any serious breaches.
We recommend that you take legal advice immediately if you are issued with any sort of infringement notice. It is of course preferable to enquire before use to ensure you comply with the law and do not breach authors’ rights.

Underlying message

Business owners should be aware that most Christmas Carols will have legal rights attached to them under the Copyright Act. Before using any songs associated with Christmas, be sure to investigate whether there are current rights, and whether a licence through APRA or PPNZ should be sought.

Make sure your business doesn’t end up with a red nose this Christmas; come and see one of our attorneys who will be sure to point you in the right direction.

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