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Wixen sues Pandora over unlicensed lyrics
By Chris Cooke | Published on Wednesday 19 June 2019
Those who have been following the rise of the streaming music business since the start might be nostalgic for the days when it was the compulsory-licence-exploiting, consent-decree-enforcing, royalty-slashing, rate-court-fixing, artist-fucking Pandora that everyone in the US music community hated. You know, before the bastards at Spotify became the industry’s pariah figures of choice. Well good news everybody! Music publisher Wixen has sued Pandora in a spat over lyrics.
Wixen – which represents songs by the likes of Tom Petty, Neil Young, The Doors, Tom Morello, The Black Keys and Sophie B Hawkins – reckons that Pandora has been making lyrics from its writers’ works available via its service without permission.
In a lawsuit filed this week, the publisher states: “Pandora has built its business in large part on unauthorised uses of [Wixen’s] musical compositions by displaying the lyrics to the musical compositions on its service, including on its website and app”.
“Pandora does not have any valid licence or other authorisation to display any of the musical compositions in this manner”, it goes on. “Nonetheless, Pandora has displayed and continues to display the lyrics to the musical compositions without any valid licence or authorisation from plaintiff, even after receiving notice of the infringement from plaintiff’s representatives in early 2018”.
Pandora originally relied on licences from the US collecting societies – SoundExchange on the recordings side and BMI/ASCAP on the songs side – in order to operate its core personalised radio service. Because it didn’t offer full on-demand functionality and its service was deemed to only exploit the performing rights of the songs (not the mechanical rights), under US copyright law Pandora could operate without directly dealing with either the record labels or the music publishers.
This – coupled with a strategy of lobbying the Copyright Royalty Board and rate courts to keep royalty commitments down, and efforts to stop publishers circumventing the collective licensing system in the digital domain – made Pandora very unpopular in the music community for a time. But as its business model evolved, it did start striking up deals directly with labels and publishers, and relationships between Pandora and the industry improved.
Streaming services that want to include lyrics in their apps and platforms need separate lyric licences from the music publishers, on top of any licences that cover the actual streaming of the songs. Many digital firms work with lyric aggregator LyricFind to get access to a large library of lyrics via one licence, and that includes Pandora. However, Wixen stresses, it doesn’t make its lyrics available via LyricFind.
The lawsuit goes on: “Pandora may claim that it had obtained licences to display the lyrics to musical compositions from one or more sources, including an entity called LyricFind, the self-proclaimed ‘largest lyric licensing service’ in the world, which claims that it ‘has licensing from over 4000 music publishers, including all majors'”.
“However”, it adds, “as Pandora knows, and has known, LyricFind did not have the authority to grant licences to Pandora for the display of any of the lyrics to [Wixen’s] musical compositions on its service”.
Pandora is a “sophisticated entity”, the legal filing then states, so should have been aware that, without licence, displaying Wixen controlled lyrics constituted copyright infringement.
Not only that, but, it restates, “plaintiff’s representatives put Pandora on actual notice of its infringing conduct in early 2018, yet Pandora did not even attempt to address its infringing conduct until May 2019, when it first purported to cease displaying some of the lyrics to the musical compositions on its service”.
And despite Pandora taking a little action earlier this year, Wixen adds, “the lyrics to the musical compositions continue to be displayed by Pandora though the service on an ongoing and regular basis, without authorisation and without compensation to plaintiff”
Assuming Pandora can’t find some licence somewhere that somehow covers the lyrics to the songs published by Wixen – or employ some sneaky technicality that explains why it doesn’t need a licence – then damages will have to be discussed. That could pose the interesting question as to what value displaying lyrics actually has for a streaming service and its users.
Though, that said, Wixen has already brought up statutory damages, the system under US copyright law where $150,000 in damages per infringement can be awarded to the copyright owner oblivious of the actual loss or gain caused by the infringing behaviour.
It remains to be seen how Pandora responds. Wixen has been proactive in defending its rights in the streaming domain, of course, and was a vocal critic of Spotify during the infamous Mechanical Wars of 2015-2018. However, it settled its multi-billion dollar lawsuit against Spotify and subsequently spoke positively of the streaming firm. Though that was during the glory days of the MMA Truce, long before Spotify’s bloody CRB Offensive.
Talking of which, Wixen’s latest bit of streaming litigation – closely following, as it does, Genius going public about its dispute with Google – suggests that we are now entering a new era of the streaming music story: The Lyrical Insurrection. Stay tuned.
