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Is a compilation album sufficiently original to merit copyright protection? It's a provocative question that has rattled courts across the country, including the U.S. Supreme Court and the Eighth Circuit Court of Appeals.
Ministry of Sound has brought the issue back into the limelight with its recent lawsuit against Spotify. The electronic music giant contends that Spotify users are creating playlists on Spotify that are rip-offs of their compilation albums.
Albeit filed in the UK, the Ministry of Sound's case may pique the attention of the Eighth Circuit Court of Appeals and renew the copyright debate over "sweat of the brow" versus originality.
Sweat of the Brow
"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," Ministry of Sound CEO Lohan Presencer told The Guardian.
Doesn't that rationale ring a sweaty bell?
Ah, yes, "sweat of the brow" -- the most perfectly titled legal concept.
As its perfect name suggests, the "sweat of the brow" doctrine applies the "'A' for effort" approach to copyright protection. Namely, creativity isn't as important as the energy that goes into making the work.
In the compilation context, the Eighth Circuit Court of Appeals adopted the "sweat of the brow" doctrine in West Publishing Co. v. Mead Data Central when it extended protection to West's court opinion compilation system.
But the U.S. Supreme Court has been less enthusiastic about the doctrine.
In Feist Publications v. Rural Telephone Service Co., the U.S. Supreme Court case about the copyrightability of phone books, Justice Sandra Day O'Connor expressed her utter disdain for the doctrine, saying "it extended copyright protection in a compilation beyond selection and arrangement... to the facts themselves."
"A compilation, like any other work, is copyrightable only if it satisfies the originality requirement," Justice O'Connor wrote in Feist, as "not every selection, coordination, or arrangement will pass muster."
At the end of the day, the copyrightability of Ministry of Sound's compilation albums will likely hinge on their originality, The Hollywood Reporter predicts.
The UK seems to use the same metric as the United States (for once): No matter how much Ministry of Sound toiled to cobble together its ecstasy and furry-backpack-friendly compilations, their copyrightability will depend on whether the "selection and arrangement involved in putting them together" makes them something new, according to The Guardian.
Ironically, the compilations' originality could destroy Ministry of Sound's case. Even if they're considered original, the protection may prove futile against Spotify's users since Ministry of Sound often mixes the tracks (by fading out songs and matching beats), Forbes points out. If they're not exactly the same sound recordings that are on Spotify, then there's arguably no infringement.
Ah, sweaty irony.