The concept of the music album has been a vital cornerstone of the recorded music industry since its adoption in the form of the long–play vinyl record in 1948. For over sixty years, the ability for artists to package a cohesive collection of performances has remained of paramount priority and an art within itself, notwithstanding the flurry of technological innovations that have altered the album’s size, shape, length, and interactivity. These collections of songs have even withstood the so–called “era of unbundilization,” as digital music services declared a new piecemeal distribution standard of albums through the turn of the century. While consumers began to dismantle albums by purchasing individual digital song downloads (and decimating industry revenue in the process), the creative community nevertheless continued to conceive, produce, market, and release musical works in a cohesive “album” format. To this day, courts have interpreted the Copyright Act to include albums in the generous definition of compilations, for the purposes of calculating statutory damage awards.
This unbundilization of content—and thus the remodeling of the album format—is no stranger to the federal court system. Judges have exhibited an immense amount of discordance over the last ten years, debating whether albums should still be considered “one work” in the context of digital music stores, and thus no longer warrant single statutory damage awards in infringement claims. Yet in the middle of this ongoing debate, the introduction of on–demand music streaming flipped the idea of an album on its head once more, this time threatening the very essence of the album: permanence. In recent years, streaming platforms have been used as tools to allow artists to further enlarge, redact, swap, and otherwise manipulate their albums post release in reacting to consumer behavior, in real time. Analogous to a digital software application, this new album delivery mechanism erases the permanence of the long–form musical experience, creating, as Mr. Kanye West declared, “a living, breathing, changing creative expression.”
Courts will now be forced to thread the needle in interpreting the collective work, compilation, and derivative work, definitions—in addition to distinguishing the conflicting tests used among the courts left over from the iTunes generation—in the face of multiple, disparate album release methods. This comment explores this unsettled terrain of music copyright law, analyzes the various approaches courts will likely employ, and argues for a new standard to define mercurial albums released through on-demand streaming services in order to most appropriately incentivize musical innovation while equitably compensating rights holders in future copyright infringement claims.
“Wake Up, Mr. West!”: Distinguishing Albums and Compilations for Statutory Damages in Copyright within a Streaming–Centric Music Economy,
26 U. Miami Bus. L. Rev.
Available at: https://repository.law.miami.edu/umblr/vol26/iss3/6