Re: music playlists

Webb, Jere wrote:
> * Client operates an online music site where you can browse songs,
> add tracks to your play list, and get suggestions for songs you
> might be interested in. Copyright permissions are obtained.
> Client proposes to have a bot "scrape" play lists from other music
> websites (these are all over the web). They would not be
> published or distributed in any way, but would merely go into a
> database that would be used to analyze affinities or likely
> interests of listeners. Then when you go to the site you will get
> suggestions on music that might be of interest to you, much like
> amazon does with books. The question is, does anybody think these
> play lists enjoy any copyright protection. I conclude that they
> do not. No matter how creative the selection process may be, the
> expression is just an an alphabetical list and therefore covered
> by Feist v. Rural Communications (holding the white pages of
> telephone book not subject to copyright protection and rejecting
> the "sweat of the brow" theory of protection).
>
>
> Any thoughts, cases etc, relevant to this issue.?
>

I think that your analysis is wrong and that the creative element of selection could be sufficient for copyright to subsist. In Feist, there was no creative selection, because every qualifying subscriber was listed. However, I am not a lawyer nor do I claim familiarity with US copyright law and others may take a different view.

This is not to say that copyright will subsist in every case; the more mechanical the selection process, the less likely that it will do so. But you admit that the selection process for some of these playlists may well be significantly creative.

As I understand it, the test is whether the "selection and arrangement" is sufficiently creative. It seems to me that this has to be construed as a single whole, rather than as two consecutive tests.

Here in the EU, the lesser "database right" would probably subsist in any case; but copyright proper would subsist if the "selection and arrangement" creativity threshold were passed.

-- 
Edward Barrow
Copyright Consultant
edward[_at_]copyweb.co.uk
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