An Expensive Ear-Worm: Why You Don’t Hear Frosty the Snowman © in the Mall

At about this time every year the debate about best and worst Christmas music heats up. As we move through the month of endless repetitions of the same batch of Christmas songs blaring through the shop stereo, you might notice you never hear your favourite ditty and pause to ask: whatever happened to Frosty?

The answer may be copyright.

The recent High Court case of Australian Performing Right Association Limited v JT Hi Fi Limited and John Tom1 reminds us of the importance of understanding when you might need to secure permission before playing music in your store. In this case JT Hi Fi Limited trading as Paul Money Hi Fi played five songs in its Mt Eden store without securing a license to so do. Because the music was used to demonstrate sound quality, the Court held it was a public performance under the Copyright Act and one authorised by JT Hi Fi and Mr Tom.

In the absence of permission from the copyright owner, JT Hi Fi and Mr Tom were held to have infringed copyright in the works. The Court awarded compensatory damages of $2,123.20 with additional damages of $15,000 to the copyright owner.

Because copyright is an unregistered right, the owner of copyright does not need to have ownership listed on any particular index in order to claim those rights. But you can still take steps to minimise the risk that your catchy tune could result in an expensive outcome.

• Performers rights may be indexed, so do some searching.

Queries through the Australasian Performing Right Association (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS) is a good first step.2

• Traditional music is more likely to be out of the period for copyright protection.

Copyright has a limited life so the older the music, the more likely it is that any copyright term has expired. You should bear in mind that traditional Christmas carols may be safe to use, but modern re-working of traditional carols could still attract copyright.

• Seek help from a professional.

Assessing whether you are at risk of breaching another person’s intellectual property rights is not something that should be treated lightly. Using someone who conducts these sorts of checks for a living can save you time, and may in the long run be the difference between Christmas cheer and a nasty letter.

1 [2019] NZHC 2508.