Copyright Law Stifles Christmas Cheer… For Now

By: Katherine Czubakowski

The public is split into two distinct groups every December: those who eagerly await the universal presence of their favorite Christmas songs and those who dread the season in which the same old songs are inescapably played on rotation.  While variety and new releases drive success the rest of the year, at Christmas, musicians understand that profits lie in the classics.  But why the sudden switch?  The answer lies in the paradoxical role that copyright law plays during a season ruled by psychology.

Copyright Theory vs. Holiday Psychology

Although not explicitly based on the Constitution’s charge of “promot[ing] the progress of science and useful arts,” the United States copyright system is based primarily on a utilitarian approach to law.  Congress and the courts have attempted to balance incentivizing authors with the public interest in disseminating artistic works by providing authors with a limited monopoly over their works for a period of time before those works enter the public domain.  This theory rests on the idea that artists will only put effort into creative endeavors if they are guaranteed an economic reward for doing so and that providing a limited monopoly over artistic works is the appropriate and necessary economic incentive.  Current copyright laws probably do encourage a large portion of existing creative content as many creative endeavors rely on the financial motivation to secure the cost for their production. 

Ironically, this utilitarian, capitalistic theory seems most exemplified by the lack of new songs in the holiday music canon.  A majority of the favorite holiday hits originated in the 1940s and 1950s. The most recent Christmas song to gain popular acceptance is Mariah Carrey’s “All I Want For Christmas Is You,” which was released 25 years ago.  These older songs rule the airwaves during the holidays for two main reasons: the technological history of music dissemination and the psychology around the holidays.  The rapid rise in the popularity of radio meant that a majority of the population listened to the same songs during the 1940s and 1950s.  However, with the invention of rock ‘n’ roll, music listening audiences split into two distinct groups which continued to fracture as the number of radio stations and the variety of available music increased. 

Since the audiences now have such varied and specific tastes, it has become much more difficult to produce a universally liked song.  This motivates most radio stations to stick with the tried and true favorites rather than risk losing listeners by playing newer songs around the holidays.  In addition to the lack of exposure, new holiday songs face the challenge of overcoming the season’s nostalgic feeling.  The Christmas season is notoriously nostalgic, reflected in listeners’ preferences by the popularity of songs that their parents and grandparents enjoyed.  Songs like “All I Want For Christmas Is You” take significantly longer than non-seasonal songs to top charts because listeners need to form memories attached to those songs before they feel the same yearning to hear them.  Since holiday songs only have a 4-6 week timespan of general exposure, as opposed to the 8-20 weeks songs generally take to top charts the rest of the year, it takes much longer for the audiences to appreciate and recognize them.

A Little Holiday Hope

These current barriers to audiences accepting new holiday classics create an economic climate that actively discourages artists’ creative production of new Christmas songs.  Many artists believe that the “inclusion of new material is artistically and financially unnecessary” since covering an old classic is likely to be more profitable in the short-term and to remain profitable over multiple holiday seasons.  Artists are similarly reluctant to significantly invest in producing new original songs because the long incubation period requires them to gamble on whether or not an original song will be profitable in the long-term.  Success during the holiday season depends on audiences listening to a new song during the season in which it is released and returning to it in the following years, but copyright law’s purely capitalistic approach to incentivize creativity actually backfires by discouraging artist creativity in favor of covering Christmas classics for reasonably assured profits.

For those who dread the return of the Christmas standards, however, there is hope.  Just as the rapid rise of radios had a hand in creating our musical Christmas canon, the rise of streaming services like Spotify may help tear it apart by decreasing the economic risk to listeners.  Since streaming services became popular in the mid-2000s, listeners have more choice than ever for their music collection and more freedom to explore different genres and artists without risking the price of a cassette or CD that they won’t enjoy. 

Streaming services also release audiences from the seasonal schedule determined by their local music retailers and radio stations.  Spotify reports that the United States typically sees a significant number of listeners streaming Christmas music starting in mid-November, whereas most radio stations don’t start playing Christmas music until the day after Thanksgiving.  As a result, audiences have an extra two weeks to explore a greater variety of Christmas songs and those songs have longer to leave an impression.  The lower economic risk and greater choice for consumers change the utilitarian copyright equation to give artists wishing to release original songs a chance of reaping the economic benefits sooner and with more certainty.  Copyright law may function more effectively, in the Christmas context, when there is less economic risk to potential audiences.

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