Post by Legal Intern Michelle Davis

“The making of a good compilation tape is a very subtle art—many dos and dont’s.” – High Fidelity

This is the essentially the argument made by dance record label Ministry of Sound in their lawsuit against Spotify in the United Kingdom. Most of the label’s profits come from selling compilations featuring artists they haven’t signed—albums with names like Running Trax 2013, Clubbers Guide and Chilled House Classics.

“We painstakingly create, compile and market our [compilation] albums all over the world,” wrote Ministry of Sound chief executive Lohan Presencer in his Guardian Op-Ed.“Millions trust our brands, our taste and our selection.” (Note: Lohan Presencer is only a slightly-less awesome name than Benedict Cumberbatch.)

According to Presencer, the effort that goes into this curation process is intellectual property that needs to be protected.

The problem is that music fans can enjoy the fruits of Ministry of Sound’s curatorial expertise without paying the label a cent. It takes less than two minutes to pull up a Ministry of Sound album on Amazon, note the track listing, and then drag and drop the tunes into a Spotify playlist. Voila! Instant compilation. And that’s exactly what a number of Spotify users have done—some going as far as to include “Ministry of Sound” in their playlist title.

And while it’s understandable that a compilation label might be peeved about a business model facing unwanted competition, that doesn’t necessarily mean Spotify users are doing anything illegal. Or, more to the point, that Spotify is liable for allowing its users to make these playlists. It all depends whether the court rules that playlists can in fact be protected by copyright.

So, does Ministry of Sound have a leg to stand on?

In the UK, they just might. In the 2010 case Football Dataco Ltd. & Ors. V. Brittens Pools Ltd., The High Court of England ruled that a soccer schedule (or “football fixture” as they call  it across the pond)—a mere compilation of game times and locations—is copyrightable. Meaning, newspapers and bookies had to pay the soccer leagues for the right to publish the times and locations of their matches. In his decision, Justice Christopher Floyd said, “the process of preparing the fixture lists … remains one which involves very significant labor and skill in satisfying the multitude of often competing requirements of those involved.” This line of reasoning followed the precedent set by the Database Directive afforded protection to “a collection of independent works, data or other materials arranged in a systematic way and individually accessible by electronic or other means.” A carefully crafted schedule seemed to fit the bill for copyright protect, so it’s possible a playlist just might as well.

But even if the British court determines that a playlist is copyrightable, Ministry of Sound has to show that there is secondary liability against Spotify. The label had sent several takedown requests to the service, all of which were ignored. If the court rules in favor of Ministry, Spotify might have to police its playlists and initiate a takedown protocol. Or, it could take the easy way out and disable that feature entirely.

It doesn’t stop there. A ruling for Ministry of Sound brings up a whole jumble of questions that are hinged on whatever factors the court might weigh in the label’s favor. For example, if the court rules that a playlist is protected because of how labor-intensive it is to craft the perfect compilation, then arguably all playlists on Spotify should be protected. For that matter, any band that’s ever spent any time ordering the tracks on their album might be able to say they own not only the publishing rights and the performing rights, but the ordering rights. Could wedding DJs, who all seem to play the same 10 songs, copyright their playlists? What about Top 40 radio stations who use a ton of market research to plan their spins?

The more you think about it, the more bizarre copyrighting a playlist seems to be.

Although this is strictly a British case for now, it’s worthwhile to explore how this suit might turn out if it were brought before an American court. Generally speaking, courts in the States give deference to the Copyright Office’s determination of what is copyrightable. While a playlist doesn’t seem to be specifically protected, a  “compilation” was defined in the Copyright Act of 1976 as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” The key takeaway from this definition is the use of the phrase original work. In the U.S., it’s not enough to show that you worked really hard to put your compilation together and thus deserve protection. A compilation must show originality. So, although it might take a lot of grunt work to put together a white pages telephone directory, it’s not copyrightable (See case Feist Publications v. Rural Telephone Service Co.). But a playlist? Maybe. It all depends if a court finds, in the words of Justice O’Connor in the Feist case, that a playlist is considered an “independent creation” with “a modicum of creativity.”

We’ll cross that bridge if and when we come to it.