INTRODUCTION
The proliferation of on-demand digital music streaming services such as Apple Music and Spotify in the past decade mirrors the way in which music consumption has changed, as these services have become the primary media for listeners.1 Digital music streaming services have “taken over” the industry, replacing CDs, iPods, and previous music platforms.2 For the first time in American history, these services have overtaken the majority of both digital music sales and the manner in which music is consumed and purchased.3 For example, Kanye West’s The Life of Pablo became the first album to go platinum in the United States based on listens through streaming services alone, after being streamed more than 1.5 billion times.4 This is indicative of the impact and reach of streaming services.
Subscribers to the services pay to digitally stream music from the services’ catalogues and pre-made radio stations.5 They can also create playlists, wherein they can select, arrange, and organize the songs.6 In turn, these users have the ability to “publish” their playlists to the platform-at-large, where other users can search for and easily listen to them.7 Both individual users and companies utilize playlists in their daily lives and business models, respectively.8 For example, SoulCycle, a popular indoor cycling studio, creates playlists based on artists and genres for its workout classes, which have become an indispensable part of its business platform.9 This shows that playlists are multipurpose tools, extending to more than mere use in one’s car or on their computer or music player.
Streaming service users generally do not create the songs comprising the playlists themselves, but do they create a work that warrants copyright protection? Is the user entitled to copyrightable ownership over the playlist? Copyright protection extends to original and creative works.10 Courts in the United States have yet to address whether playlists are eligible for copyright protection, and the issue has been raised internationally without resolution.11
The crux of this issue—a copyright interest in a playlist—lies in the relationship between industries based in copyright law and the internet economy.12 Streaming services are operating in a copyright system that did not anticipate their creation or widespread popularity,13 causing friction in this area of intellectual property.14 Furthermore, judicial and legislative resolutions to copyright disputes involving streaming services are minimal, if not non-existent.15 Although playlists can be grouped with other works, such as mixtapes or set lists, this Note will focus on playlists in the context of digital music streaming services.16 This Note will explore whether the work involved in constructing a playlist possesses the requisite creativity and originality to transform song aggregation and selection into copyrightable expression, and if so, whether the Copyright Compendium should be amended to include playlists.
Part I of this Note discusses the prevailing understanding of copyright law and the Copyright Act’s existing statutory scheme that governs copyright protection for artistic and creative works. This Part also explains the implications of such categorizations on how the courts deem which works are sufficiently original and creative to receive federal copyright protection. Part II delineates the history and rise of digital music streaming services and playlists and how copyright law protections may apply to them. Part III examines the application of federal copyright law to playlists. In doing so, this Part determines whether playlists are compilations and, if so, whether copyrights should be extended to playlists created on digital music streaming services. This Part argues that, to the extent that playlists meet the requisite standards of originality and creativity under federal law, copyright protection should follow. Part IV proposes a comment to the Copyright Compendium that extends copyright protection to playlists to ensure consistency and certainty as to whether users’ playlists must be protected under the Copyright Act.
I. BACKGROUND
A. The History of Copyright in American Jurisprudence
Copyright law and entailing protections are based in the United States Constitution. Article 1, Section 8 states, “Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . . .”17 On its face, this indicates that the framers sought to extend intellectual property protections and rights to works within the art and science fields.18
The Copyright Act was promulgated in 1790, with its greatest modern revision occurring in 1976.19 Prior to Congress’s 1976 revision, courts operated under the 1909 Act, which was antiquated by virtue of its statutory ambiguity and technological advances (despite efforts to intermittently adopt general revision bills).20 The new, reworked Copyright Act significantly expanded the scope of protections and subject areas eligible for those protections. For example, Section 102 of the Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated,” but expressly denies such protection to ideas, procedures, processes, and so forth.21
Further, Congress enumerated eight categories of copyrightable works, including, but not limited to literary, musical, dramatic, pantomime and choreographic, pictorial, graphic, sculptural, motion picture and audiovisual, sound recordings, and architectural works.22 These categories included works eligible for copyrights, but were not exhaustive and did not exclude protection of other works.23 As such, Congress left open the possibility for other works to receive copyright protection even if they were not contemplated by the 1976 Act.24 This promotes the aim of copyright law—the advancement of the arts—because authors will not be denied protection if their work is not a type delineated in Section 102, and because Congress will not need to redraft legislation every time an author seeks protection.25
“The sine qua non of copyright protection is originality,” insofar as a work must be original to an author to qualify for copyright protection, together with a minimal degree of creativity.26 This is the baseline standard promulgated by Congress to determine if a work is sufficiently original and creative enough to receive protection under the Copyright Act.27 The phrase “original works of authorship” is undefined.28 The phrase was intentionally left undefined in order to express the originality standard to be applied by courts without imposing an undue requirement of artistry or novelty.29 The originality standard requires that the work be original to the author.30 This unspecified and relatively low threshold of originality has enabled the subject matter of copyright to expand without judicial and legislative judgments about which works are “original” enough to be protected.31
The originality of a work alone is not sufficient to award copyright protection. The second component of copyrightable works is creativity.32 The Supreme Court has not expressly stated the requisite level of creativity required for copyright protection, but, like originality, it does not require an “inventive leap,” or innovation.33 In fact, the Court has set a low bar for what works will fail the creativity prong of a copyright or infringement claim.34 Works that are commonplace, mechanical, or obvious will fail the creativity requirement, as there is a lack of “intellectual production.”35 In essence, copyrightability stems from the presence of originality and requires more than a de minimis level of creativity.36
Aside from subject matter, the Copyright Act delineates which types of works warrant federal protection and under which circumstances protection will attach.37 Under the Copyright Act, compilations are eligible for copyright protection.38 A compilation is a work comprised of preexisting works in a manner that produces a new, original work in itself.39 Compilations can contain several forms of authorship, including: (1) selection of the material that will be included in the compilation; (2) coordination of the order or grouping of the material; and (3) arrangement of the order and placement of the material within the compilation as a whole.40 Further, the legislative history of the Copyright Act explains that a compilation is created from the process of “selecting, bringing together, organizing, and arranging previously existing material” even if the underlying material has been previously copyrighted.41 The copyright in a compilation extends only to the material contributed by the author of the compilation, not to the preexisting material included in the work, and does not affect or imply any exclusive rights in the preexisting material.42
B. Modern Judicial Applications
Since the Copyright Act does not explicitly provide a standard to evaluate compilations, courts interpreted the scopes of creativity and originality for compilations.43 The Supreme Court articulated the standard for compilation copyrightability in Feist Publications, Inc. v. Rural Telephone Service Company.44 Rural Telephone Service Company, Inc., the telephone company responsible for assembling and creating telephone books, sued Feist for copyright infringement on the grounds that copyright protection extended to the names, towns, and telephone numbers listed in Rural’s book, copied by Feist.45 Despite the well-established premise that facts are not copyrightable, the Court, in determining whether Rural’s telephone book entailed the requisite originality and creativity in its creation to permit copyright protection, asked if Rural selected, coordinated, or arranged these un-copyrightable facts in an innovative or surprising way.46 This inquiry touched on the paradoxical nature of the case—that while facts themselves are not copyrightable, compilations of facts may be.47 Here, the Court answered in the negative, as the contents of Rural’s book were typical of telephone books, and there is nothing inherently creative or innovative about alphabetical arrangements.48
The Supreme Court held that within the bounds of telephone books, alphabetic listings of names, towns, and telephone numbers were not copyrightable insofar as the placement and selection of listings lacked the necessary and requisite creativity to “transform mere selection into copyrightable expression.”49 The Court in Feist upheld the statutory requirements of compilations while reinforcing the notion that copyrightability turns on the combination of originality and more than a de minimis level of creativity.50 In essence, the holding in Feist gave “teeth” to the requirements for compilation copyrightability and solidified the modern originality standard.
Subsequent to Feist, the Second Circuit addressed the interrelation between compilations, originality, and copyright interests in CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc.51See CCC Info. Servs. v. MacLean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994). Maclean published a book (the Red Book) eight times per year, for different regions of the United States, which consisted of their projections and predictions of the value of used cars sold in that region, categorized by automaker.52 CCC was in the same business; however, CCC’s business was internet-based and continuously uploaded portions of the Red Book onto its database.53
Upon suit, the court inquired whether the Red Book manifested the requisite originality to qualify for protection under copyright law, providing Maclean with a protected copyright interest.54 The court touched upon the notion that some compilations are protectable insofar as they devise “new and useful” selections and arrangements that contribute to public knowledge and welfare through facilitated access.55 As distinguished from Feist, Maclean’s work did not rest solely on facts, which are not copyright protected, as they were based on opinions and predictions, arguably an original creation.56 Applying Feist and copyright principles, the court held for Maclean, stating that the selection and arrangement of data within the Red Book were sufficiently original and creative to justify copyright protection.57 The court relied on the proposition that copyright law extends to whatever is original and creative within compilations, even when the original contributions themselves are minimal.58
In ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., the Sixth Circuit declined to extend copyright protection to ATC’s catalog of illustrations and transmissions parts.59 ATC, a company in the business of selling transmissions parts, created a catalog that consisted of illustrations found in another distributor’s catalog and rearranged them in accordance with the assembly and disassembly of a transmission, together with a preexisting numbering system for the catalog.60 An ATC employee left the company to form his own company, Whatever It Takes Transmissions, and created a catalog nearly identical to ATC’s.61 ATC brought suit, alleging copyright infringement over the catalog, the individual part numbers in the catalog, and the illustrations within the catalog.62 The Sixth Circuit held that none of the copied works were eligible for copyright protection, insofar as all of ATC’s creative aspects were ideas, and the catalog was insufficiently original as to the design, order, and sorting of the transmissions parts, instead being listed in a commonplace manner.63 ATC’s catalog thus lacked the two components for copyright protection as a compilation: originality and a minimal level of creativity.64
The standard by which the originality and creativity of factual compilations are evaluated remains intact, and is applicable to other types of compilations.65 For instance, courts have upheld copyright protection for compilations as to the particular selection and ordering of songs, so long as the compiler exercised “some minimal level of creativity” in selection.66 In Caffey v. Cook, a New York District Court determined whether a compilation for a musical show retained the requisite originality and creativity to qualify for protection under federal copyright law.67 The court concluded that the manner in which Caffey, the show’s producer, selected and ordered the songs for the show based upon his general vision of the show, amongst other artistic considerations, was sufficient to satisfy the minimal degree of creativity and extended copyright protection to his compilation.68 While the individual songs were not original themselves, the manner in which they were arranged and organized was, and it is that creative effort and process that copyright law seeks to protect.69
Subsequent to Caffey, a Maryland District Court ruled on whether a compilation of a disc jockey’s (DJ) mixes constituted ownership of a valid copyright in the first prong of a copyright infringement claim.70 Under the reasoning set forth in Feist and Caffey, the court held that to the extent that the DJ arranged and selected songs within her mixes, the mere fact that the mixes consisted of copyrighted songs did not preclude a claim of copyright infringement.71 This holding reiterates the principle that a minimal degree of creativity is required to fulfill the originality requirement under copyright law, and that copyrighted works amalgamated into an original work as a compilation are protectable under Section 103 of the Copyright Act.72
The breadth of works protected under copyright law has expanded since the promulgation of the Copyright Act in 1909.73 The Copyright Act delineates which entities are and are not eligible for protection, and provides liberal standards for determining whether works are sufficiently original and minimally creative enough.74 This is the test for the copyrightability of compilations.75 The judiciary filled in these baseline statutory standards to create copyright jurisprudence that remains controlling and simultaneously allowed the scope of copyrightable works to expand.76
II. THE “NEW MUSIC ECONOMY”—THE RISE OF DIGITAL MUSIC AND STREAMING SERVICES
Digital technology has visibly changed the way the music economy operates, shifting from CDs to iPods, and now to online, on-demand music streaming services.77 On-demand streaming services originally emerged in the mid-to-late 2000s, accelerating a change in the music industry and the channels of music consumption.78 Streaming consists of listening to music or watching videos in “real time,” as opposed to downloading the music or video file to a computer and listening to or watching it at a later date.79 Irrespective of the reasons for streaming’s growth and popularity, whether it is the convenience of having millions of songs at one’s fingertips, the mobility of the service, or the ability to create playlists, consumers and the music industry have responded positively.80 The two premier streaming services are Spotify and Apple Music, each comprised of millions of paid users and extensive song catalogues.81 The transition to streaming was imperfect, as the music industry—artists, record labels, and streaming services alike—had to adjust to ensure that their copyrights, licenses, and royalties were adhered to.82 However, streaming creates new copyright questions, including whether users own personal music playlists and libraries.83 In fact, current copyright law in the United States is not suited to address the myriad of issues involved with digital music services, further exacerbating copyright and ownership issues.84 In order to ascertain whether playlists are eligible works for copyright protection, it is important to examine digital music streaming services and the underlying components that constitute them.
A. Interactive Versus Non-Interactive Services
There are two types of digital music streaming services: interactive and non-interactive.85 A non-interactive subscription service, such as Pandora or an internet radio station, does not allow a user to choose specific songs or albums, whereas an interactive, on-demand service like Apple Music and Spotify furnishes users with the option to choose what songs to listen to, together with access to the entirety of the service’s music catalogue.86 In other terms, interactive services transmit music files at the user’s request in order “to listen to a recording or a playlist contemporaneously with the user’s request.”87 Both Apple Music’s and Spotify’s platforms are representative of these interactive services. As such, users are given on-demand access to the service’s music catalogue, can create playlists, and can take advantage of other constantly expanding features, all for a monthly fee.88 Thus, interactive music streaming services are more likely to track copyrightability and intellectual property issues for users by virtue of their use of the streaming service.
B. Terms and Conditions for Digital Music Streaming Services
Like any entity, on-demand digital music streaming services implement lengthy terms and conditions for subscribers to abide by while using their platforms.89 Also known as “terms of service,” these rules stipulate the appropriate use of media as determined by the business, including rights granted to the user, rights granted to the service, and warranties and disclaimers.90 Streaming services’ terms and conditions indicate that, by signing up for or using the service, or accessing any material made available by the service, the user assents to and enters into a binding contract with the service.91 Thus, whenever a user on Spotify or Apple Music creates a playlist, the playlist is subject to the terms and conditions of the streaming service. It is important to note that the terms and conditions of digital music streaming services explicitly emphasize adherence to and respect for intellectual property rights.92
C. Playlists as User-Generated Content
Playlists are used to organize a personal digital music collection93 and consist of an “ordered sequence of songs meant to be listened to as a group.”94 There are three essential components of a playlist: (1) it consists of a set of songs; (2) placed in an explicit order; and (3) intended to be listened to as a continuous whole.95 Songs are copied in their entirety onto the playlist, as they otherwise exist on the streaming service.96 The purposes of playlists are multifaceted, as one may create a list of songs for the purposes of driving, studying, or to reflect a particular emotion, artist, or genre.97 These categorizations likely influence the choice as to what songs are chosen and placed in a given order, increasing compatibility and flow between songs, and giving rise to a consistent, coherent, and tailored playlist.98
While ordered or themed song lists are not a new innovation— frequently utilized by DJs and radio stations alike—playlists have become popular works due to the rise of streaming services’ enormous catalogues.99 Streaming services are cognizant of their users’ propensity to create playlists on their platforms, and have drawn upon it to expand their businesses and services.100 Users may compile their own playlists through the aggregation of individual songs and albums, or listen to and supplement pre-made playlists created by the service.101 Due to the breadth of streaming services’ music catalogues, playlists enable users to create and publish personal compilations for others, thereby taking the responsibility of extensively searching through the digital catalogues.102 Moreover, users’ ability to create and publish playlists allows them to promote their status and work on the service itself.103 Thus, playlists are beneficial tools for both the creator and other users on the platform.
Users create playlists manually on streaming services. In doing so, they decide what kind of songs to add, what feeling the playlist seeks to establish, or whether to tailor the playlist for a specified event, mood, or occasion.104 Users can browse through a service’s music collection, or their personal library, filtering by a plethora of criteria such as album, artist, genre, or a “similarity between the artists” feature.105 Playlists are a form of personal expression in the digital music age, serving as a “possession” for the creator and instilling a sense of ownership, similar to that of DJ practices.106 In this sense, playlists are user generated content (UGC).107 UGC refers to content created by users of a system or service that is subsequently made publicly available on that platform.108 Digital music streaming service users utilize the services’ catalogues to create playlists, which qualifies playlists as UGC.109
Playlists are the core UGC for streaming services, since they are used to discover new music or listen to a collection of songs.110 Subscribers to Spotify or Apple Music are not the only users creating playlists; recording artists and organizations create and publish playlists as well, contributing to the overall community of music on the platforms.111 The quantity of playlists that exist on streaming services shows that users turn to playlists to personally engage with the music, either because of the creator or because of an underlying personal preference.112 In other words, playlists and the processes by which they are created constitute a larger part of digital music streaming services than presumed at first glance and are a core aspect of subscribers’ activity and use that reflects ownership over music.113
D. International Applications
Courts in the United States have yet to address the question of whether there is, or should be, copyright protection over playlists on digital music streaming services.114 Ministry of Sound, a dance music group that produces compilation albums, brought proceedings against Spotify in the United Kingdom in 2014, alleging that Spotify infringed its copyright by allowing users to create playlists that were the same, or substantially the same, as Ministry’s compilations.115 Ministry’s compilations received copyrights based on the order in which songs were compiled into the whole album.116 Ministry argued that its works are copyright protected because the selection and arrangement of its contents constituted an original creation.117 Spotify countered by stating that the track arrangements were “banal” and obvious arrangements lacking artistry and creativity.118 While the case settled before trial, its legal issues are analogous to this Note’s issue.119 Ministry of Sound’s case against Spotify reflects two principles: (1) the notion that there is a potential copyright interest in playlists; and (2) that playlists are compilations.120
III. ANALYSIS: THE COPYRIGHTABILITY OF PLAYLISTS
As United States courts struggle with the copyrightability of compilations and the scope of copyright protection post-Feist, it is uncertain whether there is a valid copyright claim in users’ playlists on streaming services.121 Streaming services’ users are undoubtedly compiling and creating these playlists insofar as choosing what songs to include and in what order to place them.122 Copyrightability will turn on whether there is something original and minimally creative enough about users’ playlists to extend federal copyright protections.123 Additionally, copyright protection requires the work to be fixed in a tangible medium of expression.124 Playlists satisfy this part of the analysis, as they are fixed on the streaming service wherein they may be accessed and played.125
Under the Copyright Act, federal copyright protection attaches to musical works, the words accompanying musical works, and sound recordings.126 Like any other copyrightable entity, musical works and sound recordings require originality and creativity for federal protection.127 As playlists are composed of songs—copyrightable musical works under the law—it is possible that playlists may be compilations of musical works or sound recordings, to the extent they are assembled by users in an original and creative manner.128 This analysis tends to lean more closely to the law governing compilations and the copyrightability of such works. In order to determine whether there is a valid copyright interest in user-created playlists, the competing interests and entities must be examined, beginning with analysis of playlists as compilations and determining whether playlists contain the requisite originality and creativity to categorically fall under the purview of the Copyright Act.129
A. Playlists as Compilations
Spotify’s terms and conditions explicitly state that users may create “playlist compilations.”130 Beginning with a blank list, interactive streaming service users add songs, or even entire albums, to their playlist, wherein they can categorize, edit, and listen to the chosen music.131 Under the statutory definition of a compilation,132 playlists are compilations per se, as users are assembling and creating them based on preexisting musical works—songs—and creating a new work in its entirety.133 The law is well-settled and established on these delineations. A compilation is copyright-eligible if it is original and displays a minimal quantum of creativity, arising from the selection and arrangement of preexisting works.134 This is a lenient standard, as the originality, intellectual creation, and creativity standards are low thresholds for copyright protection.135 However, the scope of copyright protection for works is thin, extending only to those aspects that are original to the author.136 This threshold for copyrightability can cut two ways.137 For one, thin protections isolate eligible works by only extending to wholly new works original to the author.138 Secondly, thin protections provide leeway in determining what types of works qualify for copyright protection.139 Insofar as the originality and creativity prongs of Feist are fulfilled, copyright law is not exhaustive, and protection can be extended to works as compilations that are not explicitly included in the Copyright Act.140
If Feist and its progeny are applied, it follows that playlists can be classified as compilations and that the creator-user has an ownership right to the playlist at large.141 Moreover, as some courts have extended copyright protection to music set-lists and playlists qualifying as compilations,142 similar copyright protections should be extended to playlists created on digital music streaming services.143 Following the Supreme Court’s reasoning in Feist, in Caffey, the New York court found that the particular selection and order of songs within the show attained the requisite levels of originality and creativity to obtain copyright protection as a compilation and collective work.144 It is important to again note that copyright protection did not extend to the underlying songs themselves, but to the compilation.145
The Feist and Caffey holdings should extend to playlists. Both feature set-lists, and similarly, playlists include a designated set of songs, selected for a particular purpose in a particular manner.146 For instance, the plaintiff in Caffey selected the show’s songs to manifest his “vision of creating a show in which three African-American tenors could sing a variety of musical genres without merely sounding like opera singers.”147 This aspiration of order, selection, and arrangement was sufficiently original under the Copyright Act.148 Like the set-list in Caffey, streaming service users are creating playlists for designated purposes and are not claiming ownership to the underlying songs that constitute the playlists.149 No user may assert or seek a copyright in Apple Music’s or Spotify’s music catalogues, since copyright protection is limited, extending only to the playlist as a cohesive whole.150 Insofar as a playlist is sufficiently original and creative to constitute a compilation,151 it should be copyrightable.
In UPI Holdings, the Maryland court upheld a DJ’s copyright due to her sufficiently creative and original selection and arrangement of music in her radio programs and club mixes, which included separately copyrighted songs.152 A DJ mix is not significantly different from a playlist, since DJ mixes, like playlists, encompass two or more songs or recordings into a single piece.153 Under this framework, the holding in UPI logically extends to encompass playlists due to the similarities between the two works. The DJ mixes in UPI involved actual production and sale of CDs that contained the mixes of songs that the DJ selected and arranged.154 There is no such production, sale, or fiscal attribute in playlist creation on digital music streaming services.155
Irrespective of the fact that the CDs were compilations of other artists’ songs, the court nonetheless upheld the DJ’s copyright in the mixes.156 Streaming service users who create playlists do so on the service’s platform and are not entitled to use the playlists outside the bounds of the service, especially for financial gain, which would constitute infringement.157 As such, Spotify’s terms of service explicitly state that users are granted with a license to make “personal, non-commercial, entertainment use” of the content, and Apple Music’s terms state that users “may use the Services and Content only for personal, noncommercial purposes.”158 If a musical compilation composed of preexisting songs is copyrightable due to its originality and creativity, playlists should likewise be considered compilations and should be extended the copyright protections that similar works have been granted.159 The Supreme Court’s reasoning in Feist as applied in subsequent compilation cases supports the extension of copyright protection to playlist creators.160
Playlists are distinguishable from the compilations that were denied copyright protection in Whatever It Takes Transmissions.161 The Sixth Circuit found (1) that Whatever It Takes Transmissions’ catalog was insufficiently original as a copyrightable compilation, as the design, order, and sorting of the parts in its catalog were identical to ATC’s, and (2) that the catalogue’s parts were listed in an obvious matter, lacking the creativity required for copyright protection.162 Under this reasoning, a playlist that copied an album or another preexisting playlist verbatim could not obtain copyright protection, as there would be nothing creative or original about the compilation.163 Whatever It Takes Transmissions does not bar copyright protection of compilations insofar as they are sufficiently creative and original.164 As long as the songs are arranged in a sufficiently original, non-obvious, and minimally creative enough manner, copyright law does not seem to prima facie bar protection towards playlists as compilations.165
Albums of music are considered compilations by courts.166 In Bryant v. Media Right Productions, Inc., the Second Circuit held that albums are compilations under the Copyright Act, as the songs are preexisting works in themselves and comprise the album as a whole.167 While the issue in Bryant turned on copyright infringement damages, the court’s reasoning is relevant to compilations.168 The court held that as a compilation, the albums were entitled to a singular damage award, despite any value the songs had individually.169 Thus, Bryant highlighted that the aggregation of preexisting songs in a creative and original manner, combined into a singular work, will be treated as a compilation under the Copyright Act.170
On a plain reading of the Copyright Act, this classification should also extend to playlists.171 Similar to albums, playlists are a collection of copyrighted works arranged and selected in order to create a new piece—the playlist itself.172 If albums are legally deemed to be compilations, what is prohibiting playlists from receiving the same copyright protection? An album is arguably merely an artist-created playlist of their own personal content.173 Further, the contemporary music marketplace has seen the rise of compilation albums, albums composed of songs that have already been licensed and recorded for another purpose.174 Such albums, similar to playlists, follow a designated theme or mood, such as “Best of . . . ” or “Now! That’s What I Call Music,” and are composed of songs by the same artist or a plethora of artists.175 Compilation albums are digitally available as well, manifesting in virtual compilations available for streaming.176
Since compilation albums are permissible, this leaves open the possibility for other music compilations to be copyrightable as well.177 There is nothing inherently different between compilation albums and playlists. It follows that the same protection should be extended to playlists, a non-purchasable work composed of preexisting songs. Playlists can fulfill the statutory requirements of compilations as embodied in Section 103 because the user-creator is seeking a copyright in the playlist, not the preexisting songs comprising it.178 Additionally, courts’ recent holdings cut in favor of extending compilation copyrights to playlist creators.179 Under this paradigm, there appears to be no compelling reason why playlists should not receive copyright protection as compilations if they are original and minimally creative enough.
The Copyright Act states that copyright protection in a compilation extends only to the material contributed by the author of such work.180 Case law after the promulgation of its 1976 revision has established that an author is one who contributes something that is copyrightable on its own, fixed in a tangible medium of expression.181 Is a music artist an author under this framework? What about a user on a streaming service that compiles a playlist? The Copyright Act’s definition is imprecise, but suggests that streaming service users are authors for purposes of copyright protection.182 Under the still-ambiguous definition implemented by the U.S. Copyright Office, it follows that artists and streaming service users could be authors, provided that they produce copyrightable, tangible works.183 Artists184 in the music industry are indisputably creating and producing new songs and albums that are subject to federal copyright law.185 In turn, this creation and production is sufficient to render an artist or streaming service user the author of a copyrightable work under copyright law.186 If a streaming service user compiles a playlist in an original and creative manner, they arguably become an artist.187 Playlist authorship on streaming services is easily discernible. 188 If a user creates a playlist, that playlist materializes into an entity belonging to that user—and once published, that author.189 Thus, users who create playlists on streaming services are in effect the authors of their playlists, and should be eligible for copyrightability of the playlist as a compilation.
B. Originality and Creativity in Playlist Creation
The standards for creativity and originality put forth by the Supreme Court in Feist remain in place, together with subsequent decisions that extend copyright protection to musical compilations involving the selection and arrangement of preexisting, copyrighted songs.190 Since albums and DJ mixes are protected as copyrightable compilations, the selection and arrangement of songs within a playlist should likewise be eligible for copyright protection.191
The Court in Feist declined to extend copyright protection for an alphabetical listing of data because there is nothing inherently original or creative about alphabetical lists.192 However, playlists are different. It does not matter that the songs used to create the playlist are preexisting copyrighted works, for this has “no bearing on the originality analysis.”193 Choosing the order in which songs are placed, selected, and ultimately played is inherently original and creative.194 The copyrightability of a playlist as a compilation turns on these standards, together with the multitude of considerations that creators can take into account.195 Under Feist, a playlist should be eligible for copyright protection if it is original in its song selection and arrangement and it encompasses a de minimis level of creativity.196 There needs to be demonstrative, evidentiary proof that the user arranged and selected the songs in a manner to render the playlist wholly original.197
The purposes for which playlists are created runs the gamut. Users may create a playlist for a specific event—a birthday party, exercising, a vacation.198 The purpose for which a playlist is created influences the artists and songs included in the playlist and the length of the playlist itself.199 These are creative choices actively made by the user. In deciding what songs to include on a playlist, the creator must take the above factors into consideration.200 It is this engagement with the music catalogue or collection, and deliberate arrangement and selection, that is creative.201 Anyone can select songs at random and drop them into a playlist. Carefully sifting through thousands, if not millions of tracks to select songs that reflect a broader message or theme requires time, contemplation, and most importantly, creativity.202 Creating a playlist is an art, as good playlists inherently share similar characteristics, such as balancing popular songs, artist and genre homogeneity and diversity, and smooth transition between tracks.203
The intellectual property value of a playlist lies in the originality and creativity of its arrangement and composition of the songs selected.204 While the order of songs on a playlist is significant, the reasoning behind song choice and order on a given playlist is significant as well, hinging on the creator of the playlist and the purpose with which it was created.205 If song order is this important for playlists, it follows that creators devote considerable attention to this aspect of playlist creation.206 This choice and ordering of songs is important, in that playlist creators are considering a plethora of factors, such as what songs to include and the order of songs, and are deciding how to select and arrange them in a certain manner.207 Thus, playlists should be copyrightable provided that they consist of songs that are arranged and selected in an original and creative manner and are not mere copies of another work.
C. Terms and Conditions as a Potential Bar to Copyrightability
Users of digital music streaming services adhere and consent to the terms and conditions of the services by virtue of their subscriptions.208 The terms and conditions of these services pose one of the most crucial issues for the copyrightability of user-generated playlists on these platforms. Even if the requisite levels of originality and creativity materialize in a playlist, the terms and conditions delineate user guidelines regarding playlist creation and dissemination, together with the licenses to music granted to streaming services.209 Thus, users may not freely distribute their playlists or use them in a manner that infringes upon intellectual property rights.210
The terms and conditions of Spotify dictate that users may post or contribute content including “playlist compilations,” but may not post any content that violates the agreement between the user and Spotify or intellectual property law.211 This bars users from explicitly copying preexisting content that infringes copyrights on the service, amongst other user guidelines, such as illegally copying and selling the files.212 Despite these restrictions, the pertinent portion of Spotify’s terms and conditions state:
You grant Spotify a non-exclusive, transferable, sub-licensable, royalty-free, perpetual . . . irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium . . . . Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.213
On its face, these terms and conditions may allow users to seek a copyright over their playlist as a compilation as long as there is no infringement or literal copying of content. If Spotify has a non-exclusive license over users’ content—including playlists—and users otherwise retain ownership of intellectual property rights over their content, it follows that users may have valid copyright interests over their playlists.214 A copyright is an intellectual property right.215 Under the supposition that playlists are compilations within the purview of the Copyright Act, playlists fall under the user content that is granted intellectual property protection.216
Additionally, licensing procedures for digital music streaming services may challenge the copyrightability of user-generated playlists.217 Digital music streaming services need to obtain the rights to perform and make copies of the sound recordings and compositions utilized on their services, which entails several licensing and statutory hoops.218 There are two works within music that are distinct for copyright purposes. There are separate copyrights for the musical work (or composition) holder and for the sound recording holder.219 As such, streaming services are required to obtain these licenses in order for users to access music on the platform.220 Although users are paying to use the service, it is not clear whether they are paying towards the licensing of the music, or whether the original license holders would even permit the extension of a compilation copyright to streaming service users.221 Again, courts have not ruled on whether there is a copyright interest in compilations or playlists created on digital music streaming services.222 Until such a claim is brought, there is no controlling authority aside from the Copyright Act and case law on compilations,223 leaving this an open question for Congress and the courts.
IV. PROPOSAL: THE INCLUSION OF PLAYLISTS AS COPYRIGHTABLE COMPILATIONS NECESSITATES AMENDMENT OF THE COPYRIGHT COMPENDIUM
The Copyright Compendium is an administrative manual promulgated by the U.S. Copyright Office that provides instruction regarding copyright practices and related intellectual property law principles.224 Chapter 300 of the Compendium provides guidelines for establishing copyrightable authorship at large,225 while Chapter 500 explains how to identify copyrightable authorship, specifically how to describe copyright claims in compilations.226 Although the Copyright Act is unambiguous and specifically delineates which categories of works are copyrightable and what constitutes a compilation, an amendment to the Copyright Compendium would eliminate uncertainty as to whether playlists are compilations under federal copyright law. While the Compendium lacks the force of law, it is persuasive authority and is given judicial deference when a novel intellectual property issue arises that is not addressed in the Copyright Act or subsequent regulations.227
As the law currently stands, copyright protection is afforded to compilations comprised of musical works228 and sound recordings.229 Although the Supreme Court explicitly laid out the standards for compilation copyrightability in Feist, subsequent court holdings extended copyright protection to set-lists and DJ mixes as compilations, further complicating the legal treatment of playlists.230 An amendment to the Copyright Act to provide for the inclusion of playlists as copyrightable subject matter in Section 102 is a drastic and unlikely remedy. If the U.S. Copyright Office clarified whether playlists are a copyrightable work, digital service streaming users would be entitled to seek a copyright claim in their playlists; however, only Congress has the authority to create new categories of authorship that are entitled to copyright protection.231 Thus, an amendment to the Compendium is the proper remedy for legislative silence regarding playlists as compilations. Federal courts have the authority to interpret copyright claims with regard to the scope of the subject matter of the work and the originality and creativity of the work,232 and they often refer to the Compendium’s interpretations during adjudication.233 Due to this deference, it follows that an amendment to include playlists in Chapter 500 of the Compendium would allow courts to find a copyright claim in users’ playlists.
The most recent Compendium includes musical works and sound recordings as protected works.234 As playlists are composed of songs, playlists are in essence a compilation of musical works or sound recordings. Under the supposition that playlists are compilations, it follows that the inclusion of playlists as a copyrightable work would neither burden nor frustrate the existing statutory scheme.235 Subject to the terms and conditions of the streaming service that users assent to, there should be an amendment to the Compendium that delineates copyright protection to playlists on digital music streaming services. This amendment is necessary by virtue of the fact that playlists are an omnipresent part of the contemporary music marketplace.236
It is undisputed that the copyright laws are antiquated, for the 1976 Congress could neither have possibly predicted the rise and popularity of digital music streaming systems, nor have framed copyright laws to keep up with technological advances of this nature.237 It is for this reason that the Compendium should be amended to provide for playlists. In order to actualize the aim of copyright law to spur advancement, creativity, and progress in the arts, laws must adapt to the present ways that people create and the markets in which they create.238 Copyright law is grounded in societal progress of the arts and sciences, through fostering creativity and advancement.239 Although copyright law aims to reward authors for their creativity,240 users are currently unable to obtain ownership or reap any nominal benefit over their playlists. Thus, including playlists as a protected compilation in the Compendium would provide user-creators with a valid copyright interest.
As copyright law hinges on the dichotomy between the rights of authors and creators, and the access of consumers and users,241 an amendment to the Compendium to include playlists would serve as a beneficial clarification to both parties and the music industry as a whole. Digital music streaming service users create playlists based upon a plethora of factors, including artists, events, mood, or occasions, but this list is not exhaustive.242 For example, consider the SoulCycle instructor who creates a playlist for a workout class, deliberately selecting and ordering the songs, as the playlist is the foundation of the class.243 Or consider the user who creates a playlist in accordance with a specified order and manner for their everyday life.244 These choices, the amalgamation of originality—in terms of arrangement, order, and selection—and creativity—in terms of flow, mood, or theme—are unique and creative.245 There is something expressive, and hence copyrightable, about selecting the order of songs on a playlist.246
Users should be rewarded for the original and creative playlists that they create. This reasoning is congruent with copyright and intellectual property law principles.247 Playlists should be accorded this copyright protection due to personalization of music that has accompanied the growth of digital streaming services, and this can be performed through their inclusion within the Copyright Compendium.248
A. Potential Objections
One potential objection to an amendment to the Copyright Compendium to include playlists as a compilation is inefficiency. Logistically speaking, granting a copyright to every user that desired one over their playlists would result in an exorbitant amount of copyrights, likely ranging in the millions, if not more.249 Even if playlists are original works of authorship that qualify for copyright protection as compilations, opponents may argue that they do not necessarily need copyright protection or the incentive of copyright protection to be created in the first place.250 However, an amendment to the Compendium including playlists as copyrightable compilations will not create widespread copyrightability, as the playlists must be sufficiently original and creative to qualify.251 If these statutory thresholds are not met, then the playlist would not be protected under the amendment.252 While an amendment has the potential to increase the amount of protected playlists and to create subsequent legal issues, inefficiency is not a bar to legality.
CONCLUSION
The Copyright Act and the Constitution protect original and creative expression because of the social, economic, and cultural value that a copyrighted work offers.253 Originality and creativity are the underpinnings of copyright law; they are the values that federal law purports to protect. Copyright law seeks to provide creators with exclusive rights in their works, bootstrapped with the incentive to create further works for the public good.254 Thus, the importance of copyright law in the American legal system is unequivocal. However, technological advances challenge copyright law, specifically in terms of the modern music industry.255 The music industry and marketplaces have transformed—the music industry that witnessed the 1976 revision is dead. Digital music streaming services such as Apple Music and Spotify have become the predominant form of music consumption in the United States, and are at odds with the current posture of federal copyright laws.256
Users on digital music streaming services have the ability to compile playlists from the services’ comprehensive catalogues.257 As a result, users have the ability to create a new work—a compilation of their own. It is indisputable that users do not have any copyright interest in the underlying songs themselves, as the streaming service separately contracts and purchases the requisite licenses to stream the music.258 This Note discussed whether playlists are copyrightable as a compilation. As aforementioned, copyrightability turns on the conjunction of sufficient originality and a minimal level of creativity.259 On its face, playlists fulfill these criteria, insofar as users compile songs in an original and creative manner and do not infringe on preexisting playlists and copyrights. Playlists have become more prevalent in society, due to the proliferation of streaming services, and providing a carve-out exception for their protection under federal copyright law would bolster the creative processes the founders aimed to protect.260