Should Brands pay artists to advertise on Playlists?

According to an article posted by Billboard, Spotify’s RapCaviar playlist has more than 9 million followers, and for many young listeners it has taken the place of local hip-hop stations in discovering new artists. It has been called “the most influential playlist in music” by New York magazine and not surprisingly so; inclusion on the playlist has almost single-handedly changed the trajectory of several artists’ careers.

RapCaviar is one of a series of continually-updated playlists Spotify offers with varying themes; Get Turnt (3.6 million followers), mint (4.9 million followers) and Hot Country (4.5 million followers) are others. These playlists function almost as an editorial extension of the Spotify streaming service — something that sets them apart from their competitors. And like all content for ad-supported businesses, playlists are an asset for Spotify to monetize.

As traditional advertising has become less engaging for consumers, publishers and brands have pivoted towards curated sponsored content as a way to break through their indifference. On its face, sponsored material mimics genuine content, but is usually somehow subsidized by a brand and calculated to promote the brand. This shift has allowed brands to supplement traditional advertising with more genuine coverage of their products. Publishers also benefited — in an increasingly-competitive environment, they had more ad inventory that couldn’t be cut off by an ad-blocker. Given its inherently commercial message, sponsored content is subject to a different set of legal standards than typical editorial content.

Spotify allows companies to sponsor its curated flagship playlists, or brand accounts can create “branded playlists” that evoke a brand’s message. McDonald’s, for example, has multiple public playlists that are represented by pictures of its food and have pun-ny names referring to McDonald’s slogans (e.g. “Lovin’ is in the Air”). Additionally, brands like State Farm, Adidas, BMW, Verizon and Nike have created playlists on their brand pages.

In a post from May 26, 2016 — now deleted, but available via archive.org — Spotify touted the launch of the sponsored playlist where listeners will be “immersed in your brand’s message, across audio, video and display.” The blog post explained how brands might link a sponsored playlist to their own commercial message: “Cardio or Power Workout are perfect for a footwear brand expanding from lifestyle shoes to workout sneakers. A QSR adding breakfast to the menu? How about Morning Commute? An entertainment company with a summer blockbuster teeny-bopper flick? Teen Party, of course. You get the idea.”

This alignment of content and brand message is a form of sponsored content. So while many of Spotify’s traditional advertisement offerings — banner ads, in-stream breaks and full screen ads — may appear sufficiently disconnected from the content to avoid any rights issues, these playlists may not be. When a brand curates its own playlist (or chooses one that evokes its offerings) it is using songs specifically to influence a consumer’s perception of the brand. If the artists on that playlist are a part of what is, truly, advertising, then shouldn’t the brands ask for permission and fairly compensate artists?

In analogous situations with respect to other advertorial content, courts have often said that the answer is yes. Significantly, if a work is considered “native advertising,” its implicitly commercial message means that it can be stripped of First Amendment protection against claims of copyright and other infringement. In other words, using copyrighted or protected works to advertise a product requires the owner’s consent: fair use and free speech are typically not successful defenses.

“Commercial speech” can be overt, proposing a specific transaction — but it can extend to speech of a more implicit nature, such as that which “seeks to influence how consumers view the company for the purpose of promoting sales of its products,” according to the American Bar Association. Although fair use can provide wide protection for editorial publications reproducing copyrighted works for commentary or reporting purposes, use for inherently commercial purposes — a brand’s attempt to insert itself in pop culture at the expense of an artist’s copyrighted work — almost certainly wouldn’t cut it. The logic behind this is simple — that a brand should obtain consent and compensate an artist for aligning their protected work with the brand’s message.

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