Comedians Are Finally Taking on Streamers – and Their Copyright Claims Are No Joke

The litigation — one from Lewis Black on July 7 and a batch filed in February by several comics including the estates of George Carlin and Robin Williams — are packed with receipts, claiming they’ve been underpaid or stiffed altogether for performances already streamed thousands of times on Pandora. They allege that Pandora uploaded comedy routines to Pandora without trying to get licenses. Then, in regulatory filings, they admitted that the material was being offered to more than 55,000,000 users.

“Pandora did what most goliaths do,”The Black lawsuit was filed in U.S. District Court, California. “It decided it would infringe now to ensure it had this very valuable intellectual property on its platform to remain competitive, and deal with the consequences later. Later is now.”

But lurking beneath the surface, accusations of outright nonpayment is a far more significant issue: Whether comedians — like musicians have for more than a century — hold separate copyrights for the recorded performance and the underlying written material. It’s asserted by Pandora, and widely believed among industry experts, that no comedian has ever been specifically paid for both.

Black and Co., however, have tied these two issues together and demanded back both literary and performance royalties. Multiple lawyers claimed that comedians, podcasters, and other spoken-word creators could see a significant shift due to their success, which will result in two separate royalty streams.

Pandora refused to comment on or give access to its legal counsel or executives, pointing out its You can counterclaim — which accuses the plaintiffs of demanding a “radical” change that amounts to an illegal price-fixing attempt — as its response. Spotify, Apple Music, Amazon Music and other large-scale streamers didn’t respond to queries from about their comedy content strategies and how comedians are compensated.

However, whatever happens to Pandora will undoubtedly happen for them.

All the cases are being handled by Richard Busch, a Los Angeles attorney. But multiple independent legal experts who carefully reviewed the filings (and Pandora’s response) told the plaintiffs appear to be presenting cut-and-dried federal copyright violations that will have to be reckoned with.

“If these allegations are true, then this would be like the Napster of comedy,”Stuart Chelin, a L.A.-based commercial/corporate business dispute litigation attorney.

Pandora claims it’s done nothing wrong, citing years of “industry practice and tradition”It is its defense. The Sirius XM subsidiary argues that it has, in fact, paid millions in annual royalties to comedians’ record companies and the nonprofit collective rights-management organization SoundExchangeThe Congress has designated only one organization to collect and distribute sound record royalties.

Pandora asserts that they “single source”Copyrights have always been subsumed to all other claims. This is similar to the copyrighted rights screenplay rights being combined with film distribution rights.

“This long-standing custom and practice of obtaining a single license to perform and, if needed, reproduce and distribute comedy recordings,” Pandora notes, “is efficient.”

But comedians say that’s no longer an excuse, and that what’s been good for musicians — separate licenses for recordings and their underlying material — should now be good for them.

Two New York-based startups are two recent examples of a startup company. Word CollectionsNashville, Tennessee Spoken GiantsThey are both trying to become comedians the ASCAP is for composers. Each was specifically created to press the issue of spoken-word literary rights — but first, they’ve got to establish that those royalties are legally due.

Spoken Giants and Word Collections, both founded in 2020 and 2019, have built strong rosters of comedians, living and deceased. The companies are backing the comedians’ legal actions, for reasons that should be obvious — one or possibly both stand to gain a major foothold in a river of copyrights revenues that, before now, didn’t exist.

This isn’t a Pandora problem. Major streamers have managed to duck — so far — when faced with similar legal actions.

Spotify deleted hundreds of comedians last year after Spoken Giants began demanding double royalties for its members. And YouTube is known to willingly take down videos containing underlying copyrighted comedic material upon request — a tacit acknowledgment of a comedian’s underlying right to the written work, entertainment lawyers told .

Pandora refuses Word Collections the time of Day, trashing them as a “cartel”All set on illegal price fixing The streamer claims Word Collections and, by proxy, Spoken Giants are trying to fix illegal price fixing. “radically transform”In what amounts to an absurd request, industry norms have held for decades. Pandora claims that Pandora is wrong. “exposure”It is a good platform for comedians who frequently contact it to promote their material. Pandora does not provide proof that Black received anything, but it insists that it has paid for all the content on its platform.

Tell it to Black

The funny, eccentric man with a varied and decades-long career that includes a still-running comedy show. “Daily Show”Segment, his iconic voice characters and the many comedy specials he self-produced, he has never given up his copyrights. He’s just one of those guys who always kept things in-house.

Black’s lawsuit says his material on Pandora had 100,000 monthly listeners, to the tune of 1.2 million annual streams, but “never saw a fraction of a penny”For it. He’s demanding more than $10 million for the improper use of nearly 70 works, and is seeking a jury trial. He argues that Pandora would have made it easy for Black to pay them properly if they had put him on their platform.

“You can go to their agents, you can go to their managers — they’re all represented by well-known entertainment lawyers,”Chelin agreed. “But it’s a pain to do it.”

Three other prominent litigation attorneys, who spoke with on condition of anonymity because of connections to the industry and/or parties in the cases, agreed that federal law doesn’t appear to be on Pandora’s side.

“I’m a true believer in plaintiff’s case,”Another one.

While it may be true that comedians have been going along with single-source copyrights — or no compensation at all, for years now — that doesn’t make it legally sound, Busch argued in a Friday filing responding to Pandora’s antitrust claims.

“Pandora … neither dispute[s] that it has exploited the copyrighted works of the comedians for a decade, nor claim that it had a performance, distribution, or reproduction license to do so,”The filing says. “Pandora also does not claim that it has paid the comedians for the exploitation of the works. Finally, Pandora does not argue that the law does not require it to obtain licenses.”

Everyone who heard this story was fascinated by the last point.

“I wouldn’t say this conclusively, but I don’t know how ‘industry custom’ is going to overcome federal copyright law,”Chelin said. “It’s an artistic work, and it’s protected.”

An additional attorney stated: “The law is the law, and the people who have the most to gain by not paying can’t create ‘industry practice’ contrary to the law.”

Pandora claims this precedent is decades old. But there’s a reason comedians haven’t come calling for dual copyrights until now — in part because streamers like Pandora simply didn’t exist until the late aughts, when comics were still making money from selling physical media.

“If you think about the distribution of comedic material until now, you bought a ticket, or a comedy album,”Chelin agreed. “That’s the only way you got it. Now, almost the sole place is through these new platforms.”

In part, this is because, well, comedians. But being a little bit tardy to the party, the legal experts agree, doesn’t mean you don’t have a case.

Other than the obvious years-long battle between streamers and musicians which didn’t fully settle out until the mid-aughts, there’s little precedent for Pandora vs. Comedians in federal case law. But there’s also scant precedent for an “industry custom” trumping what’s written into enforceable law.

A New York District Court dismissed the case in 1968. “industry custom”Protection against publication of counterfeit musical music “Assuming, as the defendants allege, that ‘fake books’ have been accepted by the music industry without opposition, we have not yet reached the point, at least in this court’s view, where an industry custom and practice serves to repeal criminal laws,”The court wrote it then.

The plaintiffs have taken special care to point out that Pandora tipped that it was aware of what it was doing — and was indeed concerned that this day might come — in years of Securities and Exchange Commission investor filings under the heading “Risks to our business.”From 2011 to 2017, the annual investor filing was:

“We stream spoken-word comedy content, for which the underlying literary works are not currently entitled to eligibility for licensing by any performing rights organization in the United States. Rather, pursuant to industry-wide custom and practice, this content is performed absent a specific license from any such performing-rights organization or individual rights owners … There can be no assurance that this industry custom will not change or that we will not otherwise become subject to additional costs for spoken-word comedy content imposed by performing rights organizations or individual copyright owners.”

Pandora also stated in its filings, that it “could be subject to significant liability for copyright infringement and may no longer be able to operate under [their] existing licensing regime.”

That language was removed from Pandora’s annual SEC filing after being acquired by Sirius XM in 2019.

Pandora’s counterclaim, filed in May, is more than just a defensive posture. It seeks legal fees and damages from the plaintiffs, saying, among other things, that Word Collections’ demands for payment amount to copyright fraud.

Busch, in a Friday filing meant as a direct response to Pandora’s anti-trust claim, saw the punchline in that:

“Indeed, Pandora is actually asking this Court to forgive it for more than 10 years of infringement due to a proposed license sent in 2021, deem the Comedians’ copyrights unenforceable, and award Pandora damages for fees incurred in these actions,”The filing says. “This proposed relief is, respectfully, inane. Pandora either committed copyright infringement or it did not. A rejected, ignored, proposed license does not get Pandora a get out of jail free card.”