Comedian Lewis Black filed suit against SiriusXM audio streamer Pandora on Thursday, arguing that the company performed recordings of its performances without obtaining the copyright to its written work.
It’s the latest escalation in the messy battle between comedians, streamers and the executive rights organizations that have recently stepped in to standardize spoken word copyright in the digital age. This lawsuit, along with several others filed against Pandora, is seeking an overdue payment of millions of dollars in royalties for publishing royalties and fundamentally changing the way copyright for comedy features. If the comedians win, it could have major consequences for Pandora, Spotify and other audio streamers.
Publication rights for spoken word (such as comedy) have been largely ignored
Black, who achieved national fame with his regular appearances on The Daily Show, is demanding a total of $10.2 million. “You’d think entertainment giants like Pandora would honor the legacy of such a great talent, but instead they chose to illegally capitalize on Lewis Black’s creative mind and literary/comedy work,” the suit says. Black and Pandora were not immediately available for comment.
The suit is based on the idea that, just like in music, comedy albums have two copyrights for which streamers have to pay royalties: one for the recording and one for the publication, or the written work of the material that is recorded. While comedians and their labels normally receive royalties for their recording rights, the publishing rights for narration (such as comedy) have been largely ignored and sometimes outright denied by the streamers.
Black’s lawsuit follows a slew of similar legal actions by comedians such as Andrew Dice Clay and Nick Di Paolo, as well as the estates of Robin Williams and George Carlin, who are represented by the executive rights organization Word Collections. Those lawsuits, initially filed in February, were consolidated in one lawsuit by the judge in March. Black is represented by another executive rights organization, Spoken Giants, although it is not a party to the suit.
“The comedy community stands firm in their belief that their written work has value. Without the written work there would be no recordings and no live performances,” said Jim King, CEO of Spoken Giants, in a statement. “The staggering cost of this battle could be better spent simply paying for the intellectual property they stream to their millions of subscribers.”
Black first publicly entered the fray in December when Spotify removed disputed comedy albums from its platform by comedians like John Mulaney and Tiffany Haddish after negotiations between the Spoken Giants and the streamer failed. He asked for his albums to be removed out of solidarity. “It took a long time for comedy to be recognized as an art form,” he says said at the time. “That’s why Spotify should recognize that a joke is just as powerful as lyrics to a song, which they pay for.”
Pandora listed as one of its commitments that it streamed comedy without acquiring publishing rights
The dispute with Spotify has not yet led to a lawsuit. And part of the reason the Pandora suit is moving faster (even if it’s not as big a player as Spotify) could be because of the language the company used. in a financial statement before its acquisition by SiriusXM. In 2017, Pandora listed as one of its commitments that it streamed comedy without acquiring publishing rights. “As a result, third parties could bring copyright claims against us,” the company wrote.
In its response to the combined lawsuits in May, the company argued that it was the right thing to do because spoken word publishing rights are not common in the industry, comedians take advantage of the exposure they get on Pandora and Pandora is unprofitable while the comedy record labels that are. The company is also seeking damages.
Pandora’s arguments may not be strong enough to fend off the lawsuits. “They say it will be difficult to pay the royalties. That’s indisputable — it’s going to be tough,” said intellectual property attorney Terence Ross, partner at Katten Muchin Rosenman. “Unfortunately, that’s not an identifiable defense against a copyright charge.”
Losing is a very, very expensive proposition for Pandora. The comedians are demanding $150,000 for each allegedly infringed work for a total of more than $70 million. It could also set a precedent for other comedians to sue streamers for similar damages.
Aside from the direct financial damage, a change in the way spoken word copyright works could fundamentally change the way streamers do business. Spotify, in particular, relied heavily on talk content like podcasts and, soon, audiobooks, because they are so much cheaper to stream than music. If those works are also entitled to spend on royalties, that’s another cost Spotify and other streamers will have to bear.