September 04, 2013 5:07pm PT by Eriq Gardner
Spotify Sued for Not Deleting User Playlists
How much originality is there in putting together a compilation album?
The answer could inform an interesting new copyright case in the United Kingdom.
There, Ministry of Sound, a London nightclub that has successfully extended its brand by putting out compilation albums featuring popular DJs, is suing Spotify. According to The Guardian, Spotify has refused MoS's demand to delete user playlists that copy its compilation albums.
"Everyone is talking about curation, but curation has been the cornerstone of our business for the last 20 years," MoS CEO Lohan Presencer tells the newspaper. "What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums, and the intellectual property involved in that. It's not appropriate for someone to just cut and paste them."
In dance circles, the pulsating beat of the music has been known to cause sweaty bodies. In copyright circles, there is something known as the "sweat of the brow" doctrine, which could apply here.
The doctrine holds that creativity is not what is essential to copyright protection, but rather the tireless effort in creating a work. It has served to protect factual compilations.
For example, in West Publishing Co. v. Mead Data Central, the 8th Circuit Court of Appeals in 1985 extended protection to the plaintiff's system of compiling and reporting opinions of state and federal courts. Over the years, the decision has been heavily criticized, and frankly is one of the reasons why many of the documents coming out of the judiciary system are cloaked from those who would like to offer up wider access in the digital age.
Not everyone is so keen on the "sweat of the brow" doctrine.
In 1991, a dispute over the copyrightability of phone books made its way up to the U.S. Supreme Court, and in Feist Publications v. Rural Telephone Service Co., Justice Sandra Day O'Connor criticized the "numerous flaws" of the doctrine, saying "the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement...to the facts themselves."
Facts can't be copyrighted, of course. Justice O'Connor went on to say that "a compilation, like any other work, is copyrightable only if it satisfies the originality requirement," stipulating that "not every selection, coordination, or arrangement will pass muster."
That's legal precedent in the United States. How about the U.K.? It appears that the situation is no different. According to The Guardian:
"The case will hinge on whether compilation albums qualify for copyright protection due to the selection and arrangement involved in putting them together. Spotify has the rights to stream all the tracks on the playlists in question, but the issue here is whether the compilation structure -- the order of the songs -- can be copyrighted."
Is there originality in such order?
If so, and an entity like MoS can guard against user playlists that serve up music in essentially the same way that its compilation albums do, then perhaps it'd work the other way too: Spotify users who make creative arrangements in their playlists could shut down compilation albums like Now That's What I Call Music! (Such an event would be remarkable since Now is owned by major labels which would theoretically face action over their own music.)
For now, MoS is attempting to score points by establishing some form of unfair competition from Spotify's allowance on letting users make playlists with some 20 million tracks. Presencer makes the point that when the company acquires licenses from music labels to put out its compilations, "they do not grant us the rights to stream those compilation albums."