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FEATURED POST FROM THE BEST BLOGGERS IN MUSIC: Licensing holiday songs — don’t assume it’s in the public domain
By Disc Makers’ Author Andre Calilhanna
Recording your own iconic versions of familiar Christmas carols or holiday songs might be the perfect way to catch the attention of new fans or thank your existing fan base with a free download or limited-edition CD. But don’t assume your choice is in the public domain.
If you’re planning a release to coincide with the holidays, including a seasonal cover can give your album extra timely relevance, be a focal point for your promotions, or could just be a great live track to add as a bonus. There are so many possibilities when it comes to choosing classic holiday songs to cover. Which is the right track for your style, mood, and personality? And while it might seem that holiday songs have always been part of the musical fabric, the truth is a lot of seasonal favorites will require a mechanical license before you can legally record and release them as album cuts, singles, or downloads.
Any time you reproduce and distribute a recording of a composition you did not write, you need a mechanical license — unless the song is in the public domain. Mechanical licenses are issued by the owner or controller of the composition (typically publishers) acting on behalf of songwriters or composers. Basically, this is a royalty payment to the copyright owner for allowing you the use of the composition.
A good many Christmas songs are public domain, but many popular holiday tunes are modern compositions that are copyrighted and need a license.
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.
Holiday songs that ARE in the PUBLIC DOMAIN
“Angels We Have Heard On High”
“Away In A Manger”
“Deck The Halls”
“God Rest Ye Merry Gentlemen”
“Good King Wenceslas”
“Hark! The Herald Angels Sing”
“It Came Upon The Midnight Clear”
“Jingle Bells”
“Joy To The World”
“O Come All Ye Faithful”
“O Come O Come Emmanuel”
“O Holy Night”
“O Little Town of Bethlehem”
“Silent Night”
“The First Noel”
“The Twelve Days of Christmas”
“We Wish You A Merry Christmas”
“What Child Is This”
Holiday Songs NOT in the PUBLIC DOMAIN (Writer/Composer)
“All I Want For Christmas Is My Two Front Teeth” (Donald Yetter Gardner)
“Do You Hear What I Hear?” (Noel Regney, Gloria Shayne Baker)
“Santa Claus Is Coming To Town” (Fred Coots, Haven Gillespie)
“A Holly Jolly Christmas” (Johnny Marks)
“Carol Of The Bells” (Peter J. Wilhousky, Mykola Leontovich)
“Feliz Navidad” (Jose Feliciano)
“Frosty The Snowman” (Steve Nelson, Walter E. Rollins)
“Have Yourself A Merry Little Christmas” (Ralph Blane, Hugh Martin)
“Here Comes Santa Claus (Right Down Santa Claus Lane)” (Gene Autry, Oakley Haldeman)
“I’ll Be Home For Christmas” (Walter Kent, Kim Gannon, Buck Ram)
“It’s The Most Wonderful Time Of The Year” (Edward Pola, George Wyle)
“Jingle Bell Rock” (Joseph Carleton Beal, James Ross Boothe)
“Let It Snow! Let It Snow! Let It Snow!” (Sammy Cahn, Jule Styne)
“Little Drummer Boy” (Katherine K. Davis, Henry V. Onorati, Harry Simeone)
“Rockin’ Around The Christmas Tree” (Johnny Marks)
“Rudolph The Red Nosed Reindeer” (Johnny Marks)
“Silver Bells” (Jay Livingston, Ray Evans)
“Sleigh Ride” (Leroy Anderson, Mitchell Parish)
“The Christmas Song (Chestnuts Roasting on an Open Fire)” (Mel Tormé, Robert Wells)
“White Christmas” (Irving Berlin)
“Winter Wonderland” (Felix Bernard, Richard B. Smith)
Holiday Licensing FAQ
Why is licensing necessary?
Just like you need a license to drive a car, fly an airplane, or sell real estate… it’s the law! Copyright Law requires that artists and labels obtain a mechanical license before distributing a recording — digitally or physically — containing any song/composition they didn’t write.
What’s a mechanical license?
A mechanical license is a broad term that refers to the reproduction – for distribution or sale – of a musical composition in the form of a sound recording. Any time you reproduce and distribute a recording of a composition you do not control, you need a mechanical license. Mechanical licenses are compulsory licenses (they generally cannot be denied) issued by the owner or controller of a composition. Typically, these are publishers acting on behalf of songwriters or composers. Some agencies represent many US publishers for mechanical licensing, although there are US publishers who are not represented by agencies and must be licensed directly.
What does it cost?
The publishing royalty is a statutory rate set by law at 9.1¢ per unit for all recordings up to five minutes, and 1.75¢ per minute if a track is over five minutes in length.
How does this work for physical CDs?
For every physical CD manufactured that includes the cover song, the royalties owed would be 9.1¢ per pressing, per song. For instance, if you were to manufacture 1,000 CDs of an album containing two cover songs, the royalties owed would be $182 (1,000 CDs x 2 songs x 9.1¢ per song).
How does this work for digital?
The same statutory rate applies to digital downloads (DPDs). For digital downloads, the royalties are calculated on the actual number of downloads. For instance, if your album included two cover songs and was downloaded 500 times, the royalties owed would be $91 (500 album downloads x 2 songs x 9.1¢ per song). Additionally, if your cover songs are available as singles, the same rate applies to all downloaded single tracks of the song.
What if we don’t plan to sell the CDs?
You need a mechanical license even if you are giving away CDs or downloads and will be required to pay mechanical royalties for all physical units manufactured and all digital units distributed.
What does “public domain” mean?
The public domain generally includes works that are ineligible for copyright protection or whose copyrights have expired. Songs or musical works first published in 1922 or earlier are in the public domain in the US.
How do I figure out if a song needs a license?
PD Info is a good starting point to determine if a song falls into the public domain.
Can a mechanical license be withheld? Can a copyright owner decide they don’t want their work available to be recorded by anyone else?
Under Section 115 of the Copyright Act, anyone is entitled to record a song which has already been released publicly by another artist, irrespective of a copyright owner’s permission. This type of license is referred to as a compulsory mechanical license and is obtained by submitting to the copyright owner a Notice of Intent to Obtain a Compulsory License and abiding by Section 115 licensing and accounting regulations. [Or, just go to Easy Song Licensing and they’ll do the work for you.]
What constitutes a “copyrighted arrangement” for a song in the public domain?
A copyrighted arrangement consists of a version of a public domain song including changes or alterations with at least a minimum amount of creative musical expression. Sometimes, this can be difficult to determine. An excellent rule of thumb: if you used sheet music to learn it, you can find the copyright information there.
Is it legal to change the lyrics to a popular holiday song (or any song) and record our “revised” version? How would we go about getting permission to do something like that?
Changing the lyrics to a song constitutes a derivative work, which requires direct permission from the music publisher. If you are interested in contacting a particular publisher for permission to record a derivative work, songwriter and publisher contact information can often be found by searching the song databases on ASCAP, BMI, or SESAC’s websites. Disc Makers has partnered with Easy Song Licensing — they can help you with simple or more complicated licensing questions.
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Try making a classic holiday tune your own
One challenge with putting out a holiday single is how to inject your personality and musical style into a Yuletide favorite without mangling it beyond recognition or sounding like the other hundred versions of the same song. One approach: Find the essential melodies that define the song and keep them intact. Then, break the song down to its basics and, using them as building blocks, re-create the song as you would any of your own. Organically, the song will take on a feel that’s comfortable for you, reflects your style and musical personality, and ends up being different without your consciously trying to deviate from the original.
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Your copyright and royalty questions answered
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