Comedian Lewis Black filed a lawsuit against SiriusXM-owned audio streamer Pandora on Thursday, arguing that the company records his performances without obtaining copyright over his written work.
It’s the latest escalation in the chaotic battle between comedians, streamers and the performing rights organizations that has recently sprung to standardize spoken word copyright in the digital age. This lawsuit, along with several others filed against Pandora, seeks repayment of millions of dollars in publishing fees and a fundamental change in the way copyright for comedy features works. If the comedians win, it could have a big impact on Pandora, Spotify and other audio streamers.
Black, who rose to national prominence with his regular appearances The daily News, is suing for a total of $10.2 million. “One would think that entertainment giants like Pandora would honor the legacy of such an amazing talent, but instead chose to illegally capitalize on the creative spirit and literary/comedic works of Lewis Black,” the suit reads. Black and Pandora were not immediately available for comment.
The lawsuit is based on the idea that, like music, comedy albums have two copyrights for which streamers have to pay royalties: one for the recording and one for the publication or written work of the recorded material. Although comedians and their labels typically receive royalties for their recording rights, publishing rights for spoken-word content (like comedy) have been largely ignored by streamers, and sometimes even denied outright.
Black’s lawsuit follows a series of similar lawsuits brought by comedians such as Andrew Dice Clay and Nick Di Paolo, and the estates of Robin Williams and George Carlin, represented by performing rights organization Word Collections. Those lawsuits, originally filed in February, were consolidated into one lawsuit by the judge in March. Black is represented by another collecting society, Spoken Giants, although she is not a party to the lawsuit.
“The comedy community firmly believes that their written work has value. Without the written work, there would be no recordings and no live performances,” Spoken Giants CEO Jim King said in a statement. “The huge cost of this fight would be better spent if they simply paid for the intellectual property they stream to their millions of subscribers.”
Black first publicly entered the fray in December when Spotify removed controversial comedy albums by comedians like John Mulaney and Tiffany Haddish from its platform after talks between Spoken Giants and the streamer collapsed. He asked to have his albums removed out of solidarity. “It took a long time for comedy to be recognized as an art form,” he said at the time. “So Spotify should realize that a joke is just as powerful as a song they’re paying for.”
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) may be due to the language the company used in financial documentation prior to its acquisition by SiriusXM. In 2017, Pandora listed among its liabilities that it streamed comedy without receiving publishing rights. “Third parties could assert copyright claims against us,” the company wrote.
In its response to the combined lawsuits in May, the company argued that it was correct because publishing rights for spoken-language content are not industry standard, comedians benefit from the exposure they receive on Pandora, and Pandora is not profitable while comedy record labels are. The company is also suing for damages.
Pandora’s arguments may not be strong enough to ward off the lawsuits. “They say it would be difficult to pay out the royalties. That’s unassailable — it’s going to be tough,” said Terence Ross, intellectual property litigator, partner at Katten Muchin Rosenman. “Unfortunately, that’s no discernible defense against a copyright allegation.”
Losing is a very, very expensive proposition for Pandora. The comedians are suing $150,000 for each allegedly infringed work, totaling more than $70 million. It could also set a precedent for other comedians to sue streamers for similar damages.
Aside from the immediate financial damage, changing the way spoken word copyright works could also fundamentally change the way streamers do business. Spotify, in particular, has leaned heavily on talk content like podcasts, and soon audiobooks, because they’re so much cheaper to stream than music. If those works are also eligible for publishing fees, then that’s another cost that Spotify and other streamers have to incur.