Do You Own Your Music Playlist? – Mark A. Fischer

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 DJamp8217s playlist was just as valuable as a song I couldnamp8217t 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 lawThe modern cloudbased 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 adfree amp8220Premiumamp8221 service Spotify also has a social media component allowing its users to amp8220followamp8221 one another share what they listen to and subscribe to other usersamp8217 playlistsThis last feature playlist sharing recently landed Spotify a lawsuit In September 2013 a dance music record label from the UK called Ministry of Sound amp8220MoSamp8221 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 amp8220a lot more than putting playlists togetheramp8221 but actually invested in extensive research for these playlists You can draw your own conclusions on the nature of this researchThere is a special place in copyright law for compilations In the US Section 101 of the Copyright Act of 1976 extends copyright protection to amp8220the 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 authorshipsamp8221 The landmark case in the US 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 complieramp8217s 100 favorite phone numbers in order of preference the publishers lacked the creative spark needed to amp8220transform mere selection into copyrightable expressionamp8221The labor that the telephone book publisher had invested often called amp8220sweat of the browamp8221 was not the amp8220touchstone of copyright protectionamp8221 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 amp8220originality in the sense of the authoramp8217s own intellectual creationamp8221MoSamp8217s 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 playlistThe extent of copyright protection for music playlists remains uncertain because the parties settled the case in February 2014 So weamp8217ll have to wait for a definitive ruling on the copyrightability of playlists Until then dance to amp8211 and just possibly imitate the playlists of othersImage above courtesy of freedigitalphotosnetMark A Fischer is a partner at Duane Morris LLP His law practice is focused on solving problems and making deals for innovative companies institutions and individuals Mr Fischeramp8217s clients are typically in the creative industries such as new media social networking music interactive entertainment information technology software television publishing and toys He may be contacted at mafischerduanemorriscomRead all Mark39s MediaBizBloggers commentaries at Mark A FischerCheck us out on Facebook at MediaBizBloggerscomFollow our Twitter updates MediaBizBloggerThe opinions and points of view expressed in this commentary are exclusively the views of the author and do not necessarily represent the views of MediaBizBloggerscom management or associated bloggers MediaBizBloggers is an open thought leadership platform and readers may share their comments and opinions in response to all commentaries

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Do You Own Your Music Playlist? – Mark A. Fischer

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