Potential Legal Precedent for the Copyrighting of Playlists


Club 33

Playlist Author
http://www.theguardian.com/technology/2013/sep/04/ministry-of-sound-sues-spotify

A question that has been asked about and discussed on this and other forums in the Disney Park Music community is whether or not Disney has a legal foundation to claim copyright of their music playlists- playlists which are usually composed of music created by others and simply ordered and assembled in a certain way by Disney.

In general the feeling has been that the answer is no- there does not seem to be any legal precedent that someone can claim copyright over the sequence of a particular collection of tracks, and indeed Disney themselves seem to support this by having taken the stance of treating their playlists like a trade secret. Like CocaCola, they can't protect it (at least not without making the recipe publicly available) so they'd rather just not tell anyone. Which has of course fostered a community of playlist reverse-engineers to discover the information instead.

A newly filed lawsuit England, however, promises to provide an interesting legal example of someone trying to claim copyright protection of a particular sequence of music that they themselves do not own. The record label Ministry of Sound is suing streaming music service Spotify, claiming infringement based on the fact that Spotify allows its users to create playlists of the exact same tracks in the exact same order as appear on compliation albums released by Ministry of Sound:

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.
Somewhat amusingly, MoS's arguments for why the selection and sequence of tracks should be protected bear a striking resemblance both to official reasons given by Disney as to why they don't want to publish playlist information, and those of online playlist compilers frustrated at other websites reposting their reverse-engineered playlists without permission:

"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," said Presencer.
It's certainly worth nothing that whatever the outcome in this case- and to me it doesn't look like the odds are in MoS's favor- it probably wont have much, if any, impact on Disney and their theme park playlists. For one, it's a British lawsuit, with a British music label suing a Swedish website, and so wouldn't necessarily have any real legal impact in the US (although I suppose if MoS were to have a big win, and a similar case were to be brought in the United States and there was a serious lacuna of American case law precedent, the case could be brought up as relevant).

The bigger point though, is that in order to prove copyright infringement one must be able to prove damage (that the infringement harms the copyright holders rights to exploit their own content, creatively or financially). The argument that MoS is making is a very specific one based on their own business model of selling compilation albums- they license tracks from artists and then make money packaging and selling the compiled product to consumers. With the business model of album sales in the music industry becoming increasingly difficult, another source of revenue for music publishers is to license their material to a streaming service like Spotify- however their license agreements with the artists doesn't allow them to sub-license the compiled album for streaming. Hence, they argue, allowing users to recreate the albums from the original tracks allows the users to get their product (the compilation) without having to give MoS a dime. They as middlemen are being cut out and that's costing them money. Which is probably a reasonable argument, but not necessarily a legally defendable one. After all, can't a user look up the track listing online, go onto iTunes, and buy all of the component tracks individually, once again gaining the benefit of the compilation product without having to give MoS a dime? Does MoS argue that users should have to pay them merely for the right to listen to those songs in that order, when they've already legally paid for the right to listen to them (through downloads or streaming) wherever and whenever and in the context of whatever playlist they wish? It seems like a stretch for me- and I say that with all due sympathy to MoS.

In Disney's case, Disney does not generate revenue off of the compilations of music being played in their theme parks; like buildings and attractions the music is one small component in a large collection of loss-leaders which comprise the theme park product. To have a viable legal defense Disney would have to be able to prove that someone was using or exploiting the playlist information in some way that actually affected sales of theme park tickets, and I don't think there is any realistic scenario that supports that (as I said, MoS has a much more clear cut and logical argument and I still don't think they have a winning case).

Thoughts?
 

Paul

Active Member
I cannot see how the ownship of a sequence of available products that the company does not own is defensible. It occurs in multiple industries. The easiest example is interior decorating magazines that display how a room can be furnished. Or if a neighbor has a series of bushes/flowers in front of their home then no one else is allowed to duplicate that series. It would overwhelm the courts.

I realize that Disney pays an employee to research, select, and edit a sequence of music but Disney does not lose money by others duplicating that sequence. if anything the fan pursuit of generating playlists results in frequent trips to the park. Listening to those playlists usually makes us want to return to the theme parks. The only accomplishment Disney would achieve if they claimed exclusive use of a playlist is alienating their fan base.

You can create a lawsuit in response to anything - it doesn't mean you have a winnable case.
 

eyore

DLRP explorer
Premium Member
Playlist Author
I'm not at all sure if they could win this even in the UK. The implications are rather wide. Reviewing a CD and including the playlist would come under this. If it's a published playlist then the matter becomes very grey unless it's a photo or a direct copy of, say, the CD back cover (published work).
As said, it's easy enough to look up a track listing (eg Amazon who do it as part of selling the CD and therefore, one presumes, with permission). Should they win then who sues. The record company for the copying of the listing or Amazon for copying a published work from their site or both?.
One wonders whether this would be classed under "reporting" rather than "copying" as it's a statement of fact Personally I think it's too far-reaching to win but you never know.
Some intetresting points raised here:
http://www.forbes.com/sites/timworstall/2013/09/05/ministry-of-sound-sues-spotify-over-playlists/
and here
http://business.time.com/2013/09/06/spotify-sued-over-user-created-playlists/?iid=biz-main-lead

Mind you, it does also have implications for the playlists here when used on another site much to our annoyance.
 

Magic Music

Administrator
Playlist Author
I've never seen Disney claim copyright on any of their playlists. I've seen them put lists of songs on company letterhead/paper stock that says © Disney on the bottom... but they do the same for in-room guest letters informing vacationers of nearby construction... and I doubt they're claiming copyright on those. :p

I don't know that Disney treats their playlists as company secrets, either. If you find the right person, after they get done looking at you like you're from Mars, they'll be happy to provide you with a playlist. It's finding the right person that's a company secret. :lol:

Haven't we already discussed this "reverse engineering" nonsense? How does one keep Jimmy Buffet's "Margaritaville" a secret? They're playing the damn song because people know it and like it. :rolleyes:
 

eyore

DLRP explorer
Premium Member
Playlist Author
Of course, a court judgement doesn't always follow common sense. ;)
 

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