On Thursday, comedian Lewis Black filed a lawsuit against Pandora, the SiriusXM-owned audio streamer, claiming the company was streaming recordings of his performances without securing the copyrights to his written work.
This is the latest escalation in the messy fight between comedians, streamers and performing rights organizations that have recently stepped in to normalize lyric copyright in the digital age. This lawsuit, along with several others filed against Pandora, seeks to repay millions of dollars in publishing royalties and fundamentally change the way copyright law works for comedy. If the comedians win, it could have major ramifications for Pandora, Spotify and other audio streamers.
Black, who achieved national notoriety with his regular appearances on The daily show, is suing for a total of $10.2 million. “You would think that entertainment giants like Pandora would honor the legacy of such incredible talent, but instead they chose to illegally profit from the creative mind and literary/comic works of Lewis Black,” indicates the trial. Black and Pandora weren’t immediately available for comment.
The suit is based on the idea that, as in music, comedy albums have two copyrights for which streamers must pay royalties: one for recording and one for editing, or the written work. material that has been recorded. Although comedians and their labels normally receive royalties for their recording rights, publishing rights for spoken-word content (like comedy) have been largely ignored, and sometimes outright denied, by streamers.
Black’s lawsuit follows a series of similar lawsuits from comedians like Andrew Dice Clay and Nick Di Paolo as well as the estates of Robin Williams and George Carlin, who are 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 performing rights organization, Spoken Giants, although he is not a party to the lawsuit.
“The comedy community strongly believes that their written work has value. Without the written work, there would be no recordings or live performances,” Spoken Giants CEO Jim King said in a statement. “The massive costs of this battle would be better spent simply paying for the IP they release to their millions of subscribers.”
Black first entered the fray publicly in December when Spotify pulled disputed comedy albums from comedians like John Mulaney and Tiffany Haddish from its platform after negotiations between Spoken Giants and the streamer broke down. He asked that his albums be taken down in solidarity. “It took a long time for comedy to be recognized as an art form,” he said at the time. “Therefore, Spotify should recognize that a joke is as powerful as the lyrics of a song, which they pay for.”
The spat with Spotify has yet to result in a lawsuit. And part of the reason why Pandora’s suit is moving faster (even though it’s not as big of a player as Spotify) might be because of the language the company used in a financial filing prior to its acquisition by SiriusXM. In 2017, Pandora listed among its responsibilities that it airs comedy without securing the publishing rights. “As a result, third parties may assert copyrights against us,” the company wrote.
In its response to the combined lawsuits in May, the company argued that it was right to do so because publishing rights for spoken word content were not industry custom, comedians benefit from the exposure they get on Pandora, and Pandora isn’t profitable while comedy record labels are. The company also seeks damages.
Pandora’s arguments may not be strong enough to ward off prosecution. “They say it would be difficult to pay the royalties. It’s beyond reproach – it will be difficult,” said Terence Ross, intellectual property lawyer, partner at Katten Muchin Rosenman. “Unfortunately, this is not a valid defense to a copyright charge.”
Losing is a very, very expensive proposition for Pandora. The comedians are suing for $150,000 for each work allegedly infringed for a total of more than $70 million. It could also set a precedent for other comedians to sue streamers for similar damages.
Besides the immediate financial damage, a change in how lyrics copyright works could also fundamentally change the way streamers do business. Spotify, in particular, has leaned heavily into conversational content like podcasts and, soon, audiobooks because they’re much cheaper to stream than music. If those works are also eligible for publishing royalties, then that’s another cost that Spotify and other streamers will have to bear.