Ministry of Sound, Spotify, and Copyrighting Mashups

The BBC and The Guardian report about a UK lawsuit between Ministry of Sound and Spotify.  Ministry of Sound, a company that creates compilation albums consisting of various songs in a specific order, is suing Spotify, a music streaming service that lets users create song playlists, arguing that Spotify users are creating playlists that copy Ministry of Sound compilations.  Ministry of Sound argues that this infringes on their intellectual property rights.  In an editorial on The Guardian website, Ministry of Sound's Chief Executive, Lohan Presencer, explains the basis of the lawsuit:

[Spotify users] were copying our compilations. They were posting them as their own playlists and calling them "Ministry of Sound". We assumed it was an oversight on Spotify's part and contacted the company to request it remove the offending playlists. It declined, claiming there was no infringement and it wasn't its responsibility to police its users.

Several rounds of legal letters later, this dispute will now be settled in court. We believe we have a clear cut case. After 20 years and more than 50m album sales, the value and creativity in our compilations are self evident.

Ministry of Sound argues that creating mashups requires skill and effort, noting that it has developed techniques for creating effective mashups such as avoiding repeated alternation of loud and soft songs, and ordering songs so that songs by an artist are followed by songs written by the artist.  I am no expert on intellectual property law, and I'm certainly even less of an expert on UK intellectual property law, but I am interested in seeing how this case develops.

The story also raises a question that I think is interesting: could a mashup artist claim copyright protection of his or her compilation and sue a party that copies this compilation by creating a playlist of songs that copy the order of the songs in mashup compilation?



Mashups have prompted some discussion at the scholarly level, but most commentators focus on whether mashups violate copyright laws and whether the copyright law should be changed to better accommodate these compilations.  For examples of this writing, see here (arguing that fair use exception in copyright law should be expanded to include mashups), here (also discussing mashups and fair use), and here (discussing various licensing reforms that could address the rise of mashups).  For some shorter and possibly more approachable arguments on the same subject, see here and here.  Finally, let's not forget that this is also being discussed in Canada.


I am not aware of similar scholarship on the matter of whether mashups and compilations can themselves be copyrighted.  After a quick review of some of the basics of copyright law, I don't think there is a clear answer one way or the other.  As a preliminary matter, the mashup will probably need to be legally made, meaning that discussions of whether mashups are fair use or should constitute fair use are still relevant to the overall issue.  Of course, artists may create mashups through agreements with copyright holders, thereby bypassing this obstacle entirely.

Copyright law also protects musical arrangements.  While cases describing his protection have typically involved variations in single musical works (see, e.g., Woods v. Bourne Co., 60 F.3d 978 (1995); Anheuser-Busch, Inc. v. Elsmere Music, Inc., 633 F. Supp. 487 (1986)), I think it would be plausible for a mashup artist to claim that their work constitutes a musical arrangement that is deserving of copyright protection.

The tough question -- and the area where much of the debate will likely take place -- is whether mashups are sufficiently original to warrant copyright protection.  Here, the outcome may depend on what type of mashup is involved in the dispute.  Some mashups, like compilations created by the artist Girl Talk, will have a stronger argument for originality.  These mashups, while made up of compilations of pre-existing songs, don't just play one song after the other.  Songs are layered upon one another, portions of songs are interspersed strategically throughout a single track, and various other techniques are employed to make a complex end product.  On the other hand, mashups that are nothing but playlists, that is, songs that are played one after the other without any layering, have a weaker claim to originality.  While Ministry of Sound argues that a great deal of effort and expertise go into the making of their playlists, I think that they would face an uphill battle to prove that their compilations are sufficiently original to be worthy of copyright protection.

As somebody who is entirely unfamiliar with UK copyright law, I can't tell you how the Ministry of Sound / Spotify lawsuit will turn out.  But if a case like this makes its way into U.S. courts, I look forward to seeing how the copyright questions get sorted out.