I don’t want a lot for Christmas, I just want to be able to sing my favourite Christmas tunes without risk of legal action.
The very famous, now 29-year old song, which we all understand to have been written by the Queen of Christmas* herself, Mariah Carey (and perhaps less well-known, her co-writer Walter Afanasieff) is synonymous with Christmas cheer. Andy Stone (aka Vince Vance) and Troy Powers have filed a lawsuit against Carey and Afanasieff, alleging that they infringed the copyright in a 1989 song of the same name.
If you’re a legal tragic, like me, you can read the plaintiff’s allegations here.
Or if you’re a Christmas tragic, like me, you can listen to the 1989 song here.
(I know you know where to find Carey’s version, but just in case, you can listen to it here)
Or if you’d just like to go on a journey with me, to discover some legal lessons from this big ol’ mess – read on.
*Carey tried to Trademark the phrase “Queen of Christmas” in the USA 2021 but her application was rejected the following year.
When does a song infringe copyright?
Andy Stone has brought his claim in the USA. At Arts Law, we are Australian lawyers and only provide advice and information about Australian law. So, what does Australian law have to say about music and copyright infringement?
Copyright protects original works. A song is made up of two components, each of which has its own protection. These are the musical work (i.e. the sound of a song) and the lyrics (this is a ‘literary work’). When the song is recorded, the sound recording is also separately protected by copyright.
In Australia, a person infringes copyright if they use a ‘substantial part’ of the original copyright work without permission or a fair dealing exception they can rely on. A substantial part of musical works or lyrics can be used in a number of ways, including by making a recording of those works.
Whether or not a ‘substantial part’ has been used is not an easy question. It is not simply a matter of working out the percentage of that has been taken. Under Australian law, the question of whether something is a ‘substantial part’ is a question about the quality of what has been taken from the original work, not just the quantity.
In the Mariah Carey case, Stone complains of the use of the phrase ‘All I want for Christmas is you’ alleging that in the 80s and early 90s this was not a common phrase, as it is now. Stone also says there are similarities in the chord progression, melody, hook and harmonic and rhythmic aspects.
If you read the plaintiff’s case, you’ll see they’ve gone to some effort to show that Carey copied more than 50% of the song – that would not be the key question if the case were being argued in Australia. The question a court in Australia would ask is whether the part that’s been used (so for example here the phrase “All I want for Christmas is you”) is a substantial part of the original, which involves questions such as whether it is a material, recognisable or an essential part of the song.
In Australia, a well-known case involving the “substantial part” question in the context of music is the 2010 case involving the Men at Work song ‘Down Under’. This song was found to reproduce two bars from the iconic children’s song ‘Kookaburra Sits in the Old Gum Tree’, which was four bars long. The Court decided that there was a sufficient degree of objective similarity between the bars of ‘Kookaburra Sits in the Old Gum Tree’ and ‘Down Under’ to amount to a substantial part.
In another, more recent case, Glass Candy were found to have infringed copyright in the musical work ‘Love is in the Air’ by copying the sung line ‘love is in the air’ and accompanying music, in their song ‘Warm in the Winter’. In that case, the judge Justice Perram noted that “Musical history is littered with musical phrases which are short, but essential”.
But people use parts of other people’s songs all the time – it’s called sampling – isn’t that allowed?
In Australia there are certain things that only a copyright owner can do with their work. When it comes to musical works and lyrics, those rights include reproducing the works, performing the works in public, communicating the works to the public and arranging or transcribing the works. If you want to use a ‘substantial part’ of any copyright material in one of these ways you need a licence from the copyright owner, unless a fair dealing exception applies.
Where a song is sampled, this may involve reproducing a substantial part of the sampled sound recording, which in turn may reproduce a substantial part of the music and lyrics. If so, you would usually need permission from the copyright owner to make your new song. If you are doing other acts, such as performing or playing your new song in a public place, you may need to make sure there is a licence in place!
The legal document filed against Carey claims that Beyoncé is an ‘industry leader’ in the way she seeks permissions from artists she borrows from and credits them appropriately too.
Copyright in songs can get complicated really quickly. There can be three or more layers to the copyright (ie the music, the lyrics and the sound recording) and they can be each owned by different people, or even more than one person. There may also be different copyright owners for different parts of the copyright.
APRA/AMCOS may be able to assist you with tracking down the relevant copyright owners to seek a licence. APRA/AMCOS and PPCA may also be able to assist with certain licences (such as public performance, communication and mechanical licences).
Hang on, didn’t you say Stone wrote his song in 1989? Why is he only making a claim now?
That is a very good question. In Australia an action for a copyright infringement has to be made within 6 years of the date of the infringement (in the legal world this is referred to as the ‘statute of limitations’). Mariah Carey’s song was written in 1994, 29 years ago. But if the song does infringe Stone’s copyright – every time one of those exclusive acts is done (such as a reproduction or a communication), there’s a new infringement. The delay in bringing the action will likely affect the amount of damages that Stone could receive and also raises the question of whether Carey can prevent the case from going ahead given that Stone launched his case such a long time after the song was released.
Sometimes, the copyright owner may not realise there is an infringement. In the Men at Work case, the case was also commenced by Larrikin Music Publishing (the owner of copyright in ‘Kookaburra Sits in the Old Gum Tree’) long after the song ‘Down Under’ was released. In that case, the connection between the two songs was exposed in an ABC television program, Spicks and Specks, which was broadcast in 2007. Given the 6 year limitation period in the Australian Copyright Act, the penalty imposed by the Court of 5% of the ‘Down Under’ royalties only applied to royalties earned from the song since 2002 and from any future earnings. Importantly the fact that’Down Under’ was released over 30 years before the case was commenced, did not mean that Men at Work were freed from legal liability.
Where can you find out more information or get legal help?
If you would like to keep reading about music and copyright, Arts Law has a lot of information on our website. This includes our information sheet: Musicians and composers: useful resources.
If you have a question about licensing or infringement, and you would like advice that is specific to you and your circumstances, you should fill out our Legal Query Form.
And the kicker…
The thing that everyone – legal and Christmas tragics alike – should be worried about is that not only is Stone seeking no less than $20 million, he is also asking that all copies of the song be destroyed. A Christmas without ‘All I want for Christmas’ in your ears via legally appropriate means… that’s worse than a lump of coal in your stocking.