Is a playlist as protectable and as valuable as a song? When I was on a panel at Harvard Law School a decade ago and first heard the notion that a DJ’s playlist was just as valuable as a song, I couldn’t believe it. I recognized the value in a playlist but still felt that there was something especially creative and valuable in a song in contrast to the act of curating songs of others. Today the DJ electronic dance music culture is strong and growing stronger, making the question of playlist ownership even more relevant. Playlists are valuable but are they protectable under copyright law?
The modern cloud-based, social media environment in which music is consumed continues to challenge the boundaries of copyright law. One of the hottest of the streaming companies is Spotify, a service originating from Sweden that allows users to browse or search a catalog of over 20 million songs and play them at will. Spotify generates its revenue from ad sales and through paid subscriptions to its ad-free “Premium” service. Spotify also has a social media component, allowing its users to “follow” one another, share what they listen to, and subscribe to other users’ playlists.
This last feature — playlist sharing – recently landed Spotify a lawsuit. In September 2013, a dance music record label from the UK called Ministry of Sound (“MoS”) sued in the High Court in London. MoS regularly releases compilation albums containing collections of hits from various artists, and it had asked Spotify to remove user playlists that allegedly mimicked MoS compilations. MoS argued that it did “a lot more than putting playlists together” but actually invested in extensive research for these playlists. You can draw your own conclusions on the nature of this research.
There is a special place in copyright law for compilations. In the U.S., Section 101 of the Copyright Act of 1976 extends copyright protection to “the assembly of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorships.” The landmark case in the U.S. is the 1991 US Supreme Court opinion in Feist Publications v. Rural Telephone Service. In Feist, the Supreme Court held that a telephone book did not qualify for copyright protection because in compiling the basic information (names and phone numbers in alphabetical order) and displaying it in this logical way (dictated by the alphabet and not by creativity, in other words not something like a list of the compiler’s 100 favorite phone numbers in order of preference), the publishers lacked the creative spark needed to “transform mere selection into copyrightable expression.” The labor that the telephone book publisher had invested (often called “sweat of the brow”) was not the “touchstone of copyright protection.” Rather, some level of originality and creativity was required. The UK reached a similar conclusion in 2012 in Football Dataco v. Yahoo!, holding that football schedules lacked “originality in the sense of the author’s own intellectual creation.”
MoS’s musical compilations, of course, might be sexier than residential data or schedules. You can dance to these music playlists, too. Although the time and money invested in research may not sustain a copyright claim, there is an expressive element in selecting the order of songs on a playlist.
The extent of copyright protection for music playlists remains uncertain because the parties settled the case in February 2014. So, we’ll have to wait for a definitive ruling on the copyrightability of playlists. Until then, dance to – and just possibly imitate — the playlists of others.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.