Is it legal to make an identical copy of someone's workout mix? As playlists become increasingly popular on streaming services such as Spotify, Apple Music, Songza, and 8track, some questions are being raised regarding the rules and regulations which surround them.
Guest Post by Cortney Harding.
At this point, pretty much everyone recognizes that playlists are one of the biggest ways people consume music on streaming services. Apple’s “For You” section offers a solid stream of compilations, from the sublime (“Indie Hits of [year]” is the best for trips back in time) to the somewhat ridiculous (I like Arcade Fire, but do I really need an “essentials” playlist from a band with four albums?). Spotify just launched a new personalized playlists section that people seem to be wild for, and also offers plenty of user and staff curated mixes based on genres and moods. Songza just celebrated a year of Google ownership and appears to be going strong, and user-curated playlist site 8tracks continues to grow and add talent.
But for all the noise around playlists, no one really seems to know how they are actually made, or what rules govern them. Are they editorial or promotional, and do the editorial departments inside big streaming companies operate by the same rules as more traditional journalism outlets? Do the payola rules that govern terrestrial radio apply online? And while songs themselves are copyrighted works, does the order they appear in on a playlist fall under the same rules?
Any established law on this is vague. The most famous case happened in 2013, when Ministry of Sound sued Spotify claiming that it had refused to delete playlists based on Ministry compilations that had been created and shared by users. The case was settled out of court last year, with Spotify agreeing to remove the playlists from its search and blocking new users from following them, but not taking down the playlists altogether. The out of court settlement also meant that there would be no ruling to create any precedent.
Ministry of Sound could have compellingly argued that people would listen to playlists on Spotify rather than purchasing their compilations, and they wouldn’t see any of the upside because they owned the rights to very few of the tracks on their compilations. But could Spotify argue that Apple Music, or any other streaming service, was costing them users by posting identical playlists?
In some cases, playlists on different services appear similar or ever identical because there are only so many tracks available. The Billboard Hot 100 is the Hot 100, no matter who posts it, and anything defined by charts or specific eras and genres is bound to have some crossover. Ditto for mood playlists — there are only so many indie rock songs that are great for working out, especially when you take into account the fact that people want familiar tracks. As more services shift towards human curation, you might expect to see more variety — but then again, there’s a certain type of person who loves music enough to score a job as a human curator, and those folks might have pretty similar tastes.
Bad form aside, there’s nothing really stopping a service from simply copying playlists and posting them as their own. I have no doubt someone will see this as a shortcut and try to it at some point soon, and I also have no doubt that at some point this will end up in court. But then comes the slippery slope argument — if any playlist can be copyrighted, can every playlist be copyrighted? If I want to take some of the amazing mix CDs I made in high school and turn those into user-generated playlists on a service that allows it, can I then claim that track order as original — and demand payment when someone else listens to it? Services might respond by killing any user generated playlists, which would be a big loss for user engagement.
The other question still to be answered about many playlists is what sort of editorial freedom curators have to add tracks and accept payment for doing so. It generally unclear whether playlists operate like terrestrial radio (as a promotion, with no money allowed to change hands) or the record store endcaps of yore (which were up for sale). And even if official playlists were governed by certain rules, what keeps influencer playlists from being up for sale to the highest bidder? The services could release a code of conduct for users but would have a hard time really policing anything.
On the flipside, if you’re going to spend hours putting together amazing playlists and virtually crate digging, don’t you deserve to get paid something? Bigger services can afford to hire or at least pay curators, but other sites rely on user-generated playlists, and those cost users time, at least. Again, the user might not have written or recorded any of the tracks on the playlist, but they surfaced them, at least in the case of more obscure lists, and ordered the tracks just so. A great playlist maker is just like a great DJ, in a way, and radio DJs are often paid something.
As curators become more important in a world of unlimited content, it’s worth examining what they’re owed, and what ethical rules they need to follow. Some blogs are now required to disclose whether they receive any promotional content charge fees to review products, a disclaimer that might be useful if applied to some playlists. Curators are doing important work, and shouldn’t be expected to do it for free, but more transparency about how recommendations are made is sorely needed.