By Michael Patrick O’Brien–
While doing some research for a novel I am writing, I stumbled on some fascinating facts about the legal history of Christmas.
“Legal” may not be exactly the right word to use, because the great holiday used to be illegal. In 1659, the Puritan government of the Massachusetts Bay Colony outlawed Christmas celebrations in order to discourage disorderly behavior. Several other colonies and states followed suit.
Thankfully, those humbug-ish laws were relaxed or eliminated over the years and today, some of the best and most popular programs celebrating Christmas involve legal themes.
The Santa Clause movies with Tim Allen revolve around unique and intriguing issues of contract formation, interpretation, and enforcement. The clear focus of It’s a Wonderful Life is on the fiduciary obligations of financial institutions and lenders as well as their executives.
The classic film The Miracle on 34th Street features a full-blown court trial with sworn testimony and cross examination about the existence and identity of Santa Claus himself. And even the great original New Testament Bible nativity story itself, from Matthew’s Gospel, has interesting references to Joseph and a compelling domestic law subplot about the rights and responsibilities of adoptive or step fathers.
These stories all ended joyfully, but Christmas celebrations and various other expressions of the holiday spirit also have unleashed many unpleasant lawsuits and lots of litigation upon the world.
One of the most interesting was filed in California, and involved an elementary school student who brought candy canes to all his classmates. Attached to the student’s sweet gift was a story about the religious origins of the candy cane. The public school prohibited the conduct and the student’s family filed a federal court lawsuit, putting Christmas squarely in the middle of cultural battles over religious free expression and church vs. state.
It was not the first time.
As one keen reporter noted in 2001 about the extensive and often confusing litigation over municipal holiday displays, “Nativity scenes on public lands are illegal, rules the Supreme Court. Except when they’re not.”
Some people cannot get enough Christmas music, but that is not true everywhere or for everyone, which resulted in litigation too.
A few years ago, jail inmates sued Arizona’s Maricopa County Sheriff after he played holiday music all day long every day in the county jail. The sheriff claimed Christmas music lifted everyone’s spirits, and should work wonders on the incarcerated.
The inmates said being forced to listen to Christmas songs all the time was a cruel and unusual punishment and violated their civil and religious liberty rights. Although I have some sympathy with that contention, a federal court ultimately dismissed the case.
The real bread and butter—or perhaps I should say milk and cookies—of Yuletide litigation involves copyright issues. There has been lots of contention on this legal issue.
A few years ago there was a legal battle between the heirs of composer Fred Coats and EMI Records regarding the copyright status of the song “Santa Claus is Comin’ to Town.” Mariah Carey was sued for alleged infringement regarding the title of her Christmas cash cow and annual mega-hit “All I Want for Christmas is You.”
There even was litigation over Mariah’s efforts to trademark, for her own exclusive marketing and commercial use, the name “Queen of Christmas.” Mariah lost that case, so now pretty much anyone can brand themselves as Christmas royalty.
A common copyright dispute involves the use of Christmas carols in programs, with the linchpin being the date of a recording/performance and not when the song was written and composed. Thus, you can do a live performance of “Jingle Bells” (which by the way originally was called the “The One Horse Open Sleigh” when written in 1857), but if you broadcast a recent recording of that same song, then that could infringe a copyright.
In case you are wondering, here’s a list of songs where the composition is old enough to be in the public domain, meaning its original composition and tune are no longer copyright protected: “Deck The Halls;” “The First Noel;” “Hark, The Herald Angels Sing;” “Joy To The World;” “Oh Come All Ye Faithful;” “Silent Night;” and “We Wish You A Merry Christmas.”
Most of the words and the melody of “The Twelve Days of Christmas” are in the public domain too, except for the best known drawn-out line about five golden rings, which is copyright protected still.
The story “Rudolph the Red Nosed Reindeer” originally was work for hire written by a Montgomery Ward department store employee as a coloring book that the store gave away to the children of Christmas shoppers. In a refreshing change, however, this particular story did not involve a legal fight. The store gave the copyright back to the writer in 1947 who then published Rudolph as a book…and…wait for it…went down in history.
It’s a Wonderful Life lapsed into the public domain in 1974 after the movie’s rights holders failed to renew the copyright. The film played everywhere for free for many years and became quite well known, but Republic Pictures reacquired its copyrights in the 1990s. Now you do not see it on television as often.
What about two of the most popular Christmas story characters—Santa and the Grinch?
The poem A Visit from St. Nicholas, more commonly known as The Night Before Christmas and with its popular traditional depiction of Santa, was published in 1823 and has lapsed into the public domain. It’s fair game for anyone to use, and its images have contributed greatly to our current Christmas celebrations.
The Dr. Seuss estate, however, is said to be aggressive with copyright litigation, even though it has lost some high profile lawsuits against parodies of the Grinch story. So writers everywhere beware… Mr. Grinch, he’s a mean one.
From my brief review, the courts look at four basic factors to determine whether using Christmas copyrighted material violates the owner’s rights or is an allowed fair use: first, the use purpose and character, such as commercial vs. nonprofit educational use; second, the nature of the copyrighted work; third, the amount of the copyrighted work actually used; and finally, the effect of that use upon the market for or value of the copyrighted work. The critical analysis is whether the latest work adds something new—in purpose or character—altering the original with some new expression or meaning. In other words, the linchpin is whether and to what extent the new work is transformative.
Be transformative. It’s pretty good advice for the holidays as a whole too, isn’t it?
I hope you transform your Christmas and other seasonal holidays by reflecting their true fundamental spirit of love, joy, peace, and giving. And I hope you transform yourself and your new year by showing that same generous spirit during each and every one of the 364 days that follow.
(AI-generated photo by Erin O’Brien Dahlberg.)
*Mike O’Brien (author website here) is a writer and attorney living in Salt Lake City, Utah. Paraclete Press published his book Monastery Mornings, about growing up with the monks at the old Trappist monastery in Huntsville, Utah, in August 2021. The League of Utah Writers chose it as the best non-fiction book of 2022.
