Adele, Spotify and the right of integrity

A few days ago, Adele released her new studio album "30". Following the news, a tweet went viral in which the singer called on streaming platform Spotify to disable the feature known as "shuffle" on her freshly released album. This feature allows users to listen to songs from an album, playlist or EP in an order not chosen by the user or the artist. The function is also mandatory for users who do not subscribe to the streaming service (on mobile devices). According to the artist, it should be removed to respect her artistic choices, which include choosing the order of songs within albums.

Spotify subsequently disabled the shuffle button on all albums accessed through the music streaming platform. Adele commented, "We make our albums with so much care and consideration for a reason... our art tells a story and our stories should be heard the way we intend them to be. Thank you, Spotify, for listening". To which Spotify's official Twitter account responded, "Anything for you".

The message was met with the approval of the majority of the music community, which noted that each artist recognizes clear choices of creativity not only in the creative process of the individual song but also in the choice of the exact order in which they should appear on an album. While one could debate this topic from a non-legal standpoint (and perhaps we will return to it), one (unsolicited) question might be:

What would have happened if Spotify had not agreed to remove the "shuffle" feature at Adele's request and she had decided to take her reasons to the legal level? Also, is there a connection between this story and a possible infringement of the author's moral rights? If so, to what extent? Is the album per se, conceived as a particular sequence of songs, a work that is the result of the author's "free and creative choices" and thus deserving of the protection of the moral right of integrity? A cascade of questions.

And the beat goes on

There is no denying that the music industry has changed completely, not only in terms of business systems with the advent of the Internet, but also "ontologically" in terms of models of distribution, reproduction and making protected works available to the public. While a vinyl record provided the means to listen to a particular song, its ordinary use was to lift the needle out of the groove when it was time to change sides of the record, from side A to side B and vice versa. Henry Rollins (musician, writer, journalist, publisher, actor, television and radio host, comedian and activist) once said: “Sitting in a room, alone, listening to a CD is to be lonely. Sitting in a room alone with an LP crackling away or sitting next to the turntable listening to a song at a time via 7-inch single is enjoying the sublime state of solitude”. The order of the tracks on a side was always mostly determined by the artist themselves in a concept that was intangible and the result of "free and creative choices". The same thing has happened with the advent of other carriers. 

What has happened with the advent of streaming platforms? Spotify is one of the clearest examples of a shift in perspective that has produced new regulatory models since the InfoSoc Directive in the EU and thereafter with numerous other interventions up to and including the discussions (to be seen elsewhere) on the 'value gap' and Article 17 of Directive 2019/790.

Of the various moral rights protected under national law, the Berne Convention mandates at least the recognition, "independently of economic rights", of only two moral rights: the right of attribution and the right of integrity. The first refers to the author's right to claim authorship of a particular work, and the second to the right to oppose any distortion, mutilation or alteration or other derogatory act which may affect their honour and reputation. The right of integrity expresses the close relationship between the work and its author. In any case, notwithstanding the legal framework such as Article 6bis of the Berne Convention and Article 5 of the WPPT (WIPO Performances and Phonograms Treaty), moral rights have been interpreted differently in different jurisdictions.

The continental European approach, which focuses on defending the "personality of the author" is contrasted with another model, which does not formally accord moral rights a different status or a quid pluris vis-à-vis economic rights, since copyright in these jurisdictions aims to promote the public good by providing economic incentives for creative endeavours. These two different models have also resulted in moral rights being considered non-transferable and unwaivable in some jurisdictions, while in other national regimes they can be waived.

Nevertheless, when it comes to watching the two models dance an immoral tango, we cannot help but mention the time Jay-Z, Vivendi SA’s UMG Recordings, Viacom Inc’s MTV Networks, Roc-a-Fella Records, and many others were sued for allegedly infringing the moral rights of the Egyptian composer, Baligh Hamdi. As suspected, that court case was an opportunity to see the two models debate in the same room. Or when Neil Young had something to say against President Donald Trump for allegedly disparaging his music during campaign events, without his permission (and this might have affected the reputation of the artist).

In the United States, one of the most frequently cited cases, Shostakovich v. Twentieth Century Fox Film Corp, was litigated in 1948. In that case, Russian composers objected to the use of their music in a film that they believed had an anti-Soviet theme. A New York court found that the composers had not been negatively affected by the use of their compositions or names in the film and described the use of the music as incidental, concluding, however, that in US law, “the existence of a right of integrity is not clear”.

A famous case in the UK is Confetti Records v Warner Music UK Ltd, involving a piece of UK garage music composed by Andrew Alcee entitled 'Burnin' and released on Confetti Records. The label had licensed the use of the song to defendant Warner Music UK Ltd, which produced an album containing a rap version of Mr Alcee's song, performed by The Heartless Crew. In the song, the band overlaid the lyrics with various references to violence and drug culture, whereupon Mr Alcee complained that his right to integrity in music had been infringed. The court held that the mere mutilation of a work does not infringe the right of integrity unless the author can show injury to their honour or reputation. Since there was no evidence that Mr. Alcee's honour or reputation had been harmed, the court found no infringement of his right of integrity.

The benefit of the doubt

Thus, if moral rights can be understood as an extension of the author's personality, and the negative effect on one’s own honour should be proven by concrete derogatory treatment, would Adele's request be relevant from a copyright perspective? 

With the sacred (and thus truly inviolable) benefit of the doubt, it seems unlikely to find a connection between the impossibility of avoiding the Spotify's "shuffle" feature and a violation of the reputation and honour of the artist.

That said, one last question: what would be the point of these albums (which are not listed in any "original" order) if they were only available through Spotify's "shuffle" feature? Could they be affected by some sort of "mutilation"? For you to answer:

Pink Floyd - "The Dark Side of the Moon" (listen)

John Coltrane - "Blue Train" (listen)

Jean-Michel Jarre – "Oxygène" (listen)

Herbie Hancock – "Headhunters" (listen)

Brian Eno - "Ambient 1: Music for Airports" (listen)

Aphex Twin – "Selected Ambient works 85-92" (listen)

The Future Sound of London - "Lifeforms" (listen)

Boards of Canada - "Music has the right to children" (listen)

Klaus Schulze - "X" (listen)

David Bowie - "The Rise and Fall of Ziggy Stardust and the Spiders From Mars" (listen)