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Comedians sue Pandora in dispute over literary work licences
By Chris Cooke | Published on Tuesday 8 February 2022
The comedians have officially gone legal in the big old dispute over streaming services making comedy performances available with only licences in place covering the recording of those performances, not the funny words contained within. And while the first public beef in this domain involved Spotify, the lawsuits that have just been filed all target Pandora.
The legal battle is being led by Andrew Dice Clay, Bill Engvall and Ron White, and the estates of Robin Williams and George Carlin. They all accuse Pandora of copyright infringement for streaming their comedy recordings without having the right licences in place.
Each lawsuit explains the basic argument: “Just like with music, there are two copyrights involved in the recorded performance of a literary copyrighted work: a copyright in the sound recording, and a separate copyright in the underlying spoken word composition”.
Under US copyright law, they add, “copyright owners have the exclusive right to, among other things, reproduce, distribute, license, and publicly perform their works. Anyone wishing to obtain the right to do so, must get a licence from the respective copyright owner in both of these copyrights, and pay agreed to royalties. The failure to do so constitutes copyright infringement”.
The point is that, whereas in music, streaming services get one set of licences covering recordings and another set of licences covering the songs contained in those recordings, with comedy content only the former has been sorted.
Recognising that, unlike the music community, the comedy community was not used to separately administering the different copyrights in their work, two entities launched in the US seeking to represent comedians and other spoken word performers in this domain.
Those are Word Collections led by TuneCore and Audiam founder Jeff Price, and Spoken Giants, launched by the founders of comedy label 800 Pound Gorilla Records and a former exec from US song rights collecting society BMI, Jim King.
This whole thing came to wider attention late last year when a bunch of comedy recordings disappeared from Spotify, seemingly because Spoken Giants had been pushing the streaming firm to negotiate a licensing deal covering the literary works of the comedians it now represents. The rights agency insisted it didn’t ask for any content to be removed, adding that it just “wanted comedians to be paid for the jokes they write, just like songwriters get paid for the songs they write”.
As Spoken Giants and some of the affected comedians spoke out about the takedown of the comedy content, Spotify issued a statement saying: “Spotify has paid significant amounts of money for the content in question, and would love to continue to do so. However, given that Spoken Giants is disputing what rights various licensors have, it’s imperative that the labels that distribute this content, Spotify and Spoken Giants come together to resolve this issue to ensure this content remains available to fans around the globe”.
In the Pandora dispute, the comedians are allied with Word Collections. Noting how comedy content is streaming on both the main Pandora platform and its premium on-demand service, but without any licences covering the literary works, the lawsuits say: “Beginning in or about August of 2020, Word Collections … contacted Pandora in an effort to negotiate a licensing agreement for various copyright owners. From that initial contact and on an ongoing basis over the course of the following year, WC made numerous efforts on behalf of WC’s … spoken word/literary works clients to engage Pandora in good faith negotiations, to no avail”.
It adds: “While Pandora’s counsel wrote on 14 Sep 2021 to advise that counsel would respond with Pandora’s position about unlicensed spoken word content appearing on Pandora’s platform, no substantive response from Pandora or its counsel has been sent or received”. Hence the litigation.
Interestingly, the lawsuits also note that – prior to Sirius XM’s acquisition of Pandora in 2018 – the previously standalone Pandora business used to mention the issue around unlicensed spoken word content in its annual filing with the US Securities And Exchange Commission.
In those reports, the lawsuits say, “Pandora admitted in its risk factors ever year that it performs spoken word comedy content ‘absent a specific licence from any performing rights organisation’ and it has never obtained a licence for the underlying literary works for the sound recordings of spoken word comedy content that it streams. Pandora further admitted that it ‘could be subject to significant liability for copyright infringement and may no longer be able to operate under [their] existing licensing regime'”.
Pandora is yet to respond to the comedy lawsuits.
