It’s the most wonderful time of the year: gathering with friends and family, decorating the tree, and, of course, Christmas music. Like the song about snow and Santa and – wait, you don’t know which one I’m talking about? There are only about a thousand that match that description.
If you feel like all the Christmas songs and stories start to blend together after a while, you’re probably not alone. The countless jingles and pages are generally filled with the same characters and motifs – so, what’s the deal? How can people create works that are so similar in certain aspects without getting sued?
The answer lies in copyright law; specifically, the concept of idea-expression dichotomy.
Under copyright law, in order to obtain a copyright in a work, there needs to be sufficient originality and fixation. 17 U.S.C. §101. Once these threshold requirements have been met, then comes the tricky part: determining which parts of the work are actually protected by copyright and which are not.
In order to have copyright infringement, works need to be substantially similar to one another. However, this substantial similarity is analyzed only after the non-protectable elements of the work are filtered out.
Non-protectable elements may exist (and therefore separation within a single work may be necessary) due to part of the work consisting of an idea, which is not eligible for protection under the Copyright Act. Under the Copyright Act, protection does not extend to ideas; instead, an artist is only able to obtain copyright protection in their expression of said idea.
The process of removing these non-protectable elements from a work is referred to as the idea-expression dichotomy, in which a court tries to comb through disputed works for similarities in order to determine which parts are idea (thereby in the public domain, and by definition not protected under the Copyright Act) and which are expression (and therefore protectable).
Sometimes, even expression cannot be granted copyright protection, as this would provide the artist with a copyright over the entire idea as well. This is known as the merger doctrine, and occurs with things such as blank forms, where the idea can only be stated in one way or a handful of ways.
Ideas have been categorized via case law as the merger doctrine, scenes-a-faire (or commonplace elements within a story), historical theories, and systems.
Now, back to Christmas music and stories: which elements are protected by copyright and which are not? As usual, the answer is not clear-cut, and instead is very fact specific. For instance, in Christenson v. FLTI, it was found that two books discussing the Nativity story were not similar enough to constitute copyright infringement once all the non-protectable elements were filtered out. Citing the merger doctrine and the commonplace themes seen in both stories, and “[h]aving removed [the non-protectable elements] from consideration, the court said that ‘there [was] little left for this Court to evaluate.’ The only level of protection remaining was for ‘virtually identical copying,’ which was not applicable to this case. Furthermore, the court did find significant differences once the non-protectable elements were removed from consideration.”
And in another holiday-themed lawsuit, the three people who penned a short story titled Santa Paws: The Story of Santa’s Dog sued Disney, “alleging that the Disney movies Santa Buddies: The Legend of Santa Paws and The Search for Santa Paws [were] unauthorized copies of their short story and script, Santa Paws: The Story of Santa’s Dog.” In a similar outcome, the court dismissed the claim, finding that there was no substantial similarity between the works; and even those parts that were similar were not protected by copyright law.
Given the result in both of these recent cases, it appears that many Christmas-themed elements found in beloved songs and stories are not protected under copyright. Instead, it seems that unless the works are almost identical, the characters and themes of Christmas are commonplace elements, rendering them ineligible for protection (and thereby filtered out during the idea-expression analysis).
What is clear, however, is that this article should give you an intriguing cocktail party topic of discussion – so get out there and spread some cheer and copyright knowledge. Happy Holidays!
Image: Disney’s Santa’s Paws 2
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