Ministry of Sound is risking its goodwill with Spotify legal action

MoS, which for years has made money producing compilations of carefully-selected dance anthems, wants to remove unauthorised playlists from Spotify. It is reported to claim that the lists are worthy of protection by intellectual property rights because they are created by expert staff with in-depth knowledge of the dance music genre.

Many people will sympathise with MoS, not least those ‘traditional’ businesses struggling to adapt to the digital era. Others will say the case is another example of a corporate attempting to strong-arm music fans – in this case Spotify users – who just want to share their passion with friends or access their CD collection on digital devices.

The legal arguments that the two sides will rely on are not yet in the public domain. However, the dispute has echoes of the recent case involving Football DataCo, a company that owns a database of match fixtures and statistics. It took action against data company Sportradar and bookmaker Stan James over the use of the data, arguing that it had invested heavily in its database and was protected by the European Database Directive. Whether or not fixture lists should benefit from protection was the subject of much legal debate and many court cases.

In its case against Spotify, MoS is reported to be claiming infringement of its copyright, contending that the law protects the “expertise and creative effort involved” in creating its compilation albums, which is copied when a playlist is created on Spotify. In essence, it is stating that its playlists amount to intellectual property. The company is seeking an injunction to remove the playlists from Spotify – the permanent exclusion of any playlists that seem to copy MoS ones, and admission of copyright infringement by Spotify. For its part, Spotify has declined to comment but has instructed lawyers.

The position adopted by MoS is controversial, not least the fact that there is nothing in English law to protect an idea or concept. Copyright is a complex area and there is little in case law to suggest that a track listing is an original “literary work” capable of protection. It is beyond doubt that the recordings of the tracks can be protected but, unfortunately for MoS, it does not own the copyright to most of the music on its albums.

A more robust argument for MoS could be to focus on protection of its brand. The Ministry of Sound was founded in 1991 and is now a prominent name in dance music. Under the Trade Marks Act 1994 10 (3), it is possible to prove infringement of a registered trademark if a third party takes action that is “…detrimental to the distinctive character or the repute of the trademark”. MoS may well be in a stronger position if it could argue successfully that the unauthorised Spotify playlists removed its control over the integrity of its brand.

The stakes in this case are high for MoS and for Spotify. While Spotify is a digital behemoth recently valued at $3bn, it is still in a development phase for monetising its service. Any challenge to the legality of its platform may scare off funders and encourage others into the marketplace. MoS, on the other hand, is a record label striving to make money in the internet age. It is taking a risk whether court action will alienate its loyal fan base. We can be certain that many will watch with interest as the case plays out.

Keith Arrowsmith is a partner and head of intellectual property at JMW Solicitors