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Comedy copyright claims against Pandora consolidated into one lawsuit
By Chris Cooke | Published on Thursday 31 March 2022
The various comedians who have sued Pandora over unlicensed jokes have consolidated their lawsuits into one action, while arguing that the fact the streaming firm has removed their comedy routines from its platform since they went legal is an “outright admission that they knew they were infringing the copyrights of the works”.
Comedians Nick Di Paolo, Andrew Dice Clay, Bill Engvall and Ron White – and the estates of Robin Williams and George Carlin – have all sued Pandora making basically the same allegations against the streaming firm. Indeed – with the exception of the obligatory section outlining how amazing their careers have been – each comedian has basically filed the same lawsuit. Which means it’s quite easy to now consolidate all that litigation.
The comedy legal battle all centres on the fact that when streaming platforms stream recordings they are usually exploiting two distinct sets of rights – because there is a copyright in the recording, but also in the underlying work contained in that recording.
So, in terms of music, we might call those the recording rights and the song rights respectively. And in music, streaming firms need to secure two sets of licences, one set from the record industry covering recording rights, and another set from the music publishing sector covering song rights. And in Pandora’s case, the latter would be covered by licences from the US song right collecting societies like BMI and ASCAP.
In comedy, likewise, there is one set of rights in the recording and another in the routine being performed in that recording, the latter a ‘literary work’ in copyright terms. But to date where streaming services carry comedy content they only have deals with the labels or distributors that control the recordings, which means that the literary works contained in the recordings have not been properly licensed.
Spotting this licensing gap with comedy and other spoken word content, two companies launched in the US to manage the licensing of the literary works of comedians and other spoken word creators – Spoken Giants and Word Collections. The former was involved in a spat with Spotify last year over its under-licensed comedy content, while everyone involved in this Pandora litigation is working with the latter.
As with the original lawsuits, the newly combined legal action points out that Pandora itself previously raised concerns about the under licensing of spoken word content on its platform when it was still a standalone publicly listed company and was making filings with the US Securities And Exchange Commission.
The new legal filing argues that Pandora could have secured literary work licences from each comedian or declined to stream their material, but “instead, Pandora chose to infringe”. And, the comedians argue, that infringement was wilful, not least because of what it stated in those old SEC filings.
“In Pandora’s own SEC 10K public filing with the SEC from 2011 to 2017”, the lawsuit says, “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'”. This admission was only withdrawn, the lawsuit adds, when Sirius XM bought Pandora.
Meanwhile, “since the filing of the lawsuits against Pandora by plaintiffs, which are now consolidated in this action, Pandora has proceeded to remove each comedian’s catalogue from their platform”.
“While Pandora has refused to comment verbally on these lawsuits”, the legal filing argues. “Their actions in removing the works from its platform constitute an outright admission that they knew they were infringing the copyrights of the works, which they admitted in SEC filings, and now wish to belatedly stop the bleeding having been caught and sued”.
It remains to be seen how Pandora responds.
