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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.