Earlier this week, an attorney representing the estates of George Carlin and Robin Williams as well as Andrew Dice Clay, Bill Engvall, and Ron White filed five separate lawsuits against Pandora, claiming the streaming music service has “willfully infringed” the comedians copyrights.
The comedians claim that Pandora owes each of them millions of dollars in unpaid royalties. Although Pandora licenses the comedians’ recordings, the comedians are arguing that those licenses do not cover the underlying spoken word compositions. The lawsuits each contain almost identical language:
Just as there is with music, there are two copyrights involved in the recorded performance of a literary copyrighted work: a copyright in the sound recording, and a separate copyright in the underlying spoken word composition
Compl. at 4, Yellow Rose Productions, Inc. v. Pandora Media, LLC, Case Number: 22-cv-00809 (C.D. Cal. Feb. 7, 2022).
The complaints go on to state that the comedians, via an intermediary called Word Collections, attempted to negotiate licensing agreements with Pandora for the underlying compositions. It appears that the negotiations did not go well or that Pandora outright refused to even negotiate.
Pandora obviously doesn’t agree with the comedians that they’re owed any royalties for the performances themselves. Or maybe… they do agree?
In Pandora’s own SEC 10K public filing with the SEC from 2011 to 2017, three quarters of a decade, Pandora admitted in its Risk Factors ever [sic] year that it performs spoken-word comedy content “absent a specific license from any [] performing rights organization” and it has never obtained a license for the underlying literary works for the sound recordings of spoken-word comedy content that it streams. Pandora further admitted that it “could be subject to significant liability for copyright infringement and may no longer be able to operate under [their] existing licensing regime.” This admission was only removed, not so coincidentally, after Pandora’s transaction with Sirius XM Radio.
This is what I would tell my clients is A Bad Document.
Personally, prior to seeing this lawsuit I had never considered the idea of a PRO for comedy but it makes all the sense in the world. The law is clear that “literary works” are subject to copyright law. 17 U.S.C. § 102(a)(1). Do comedy performances (the “spoken word compositions” referenced in these lawsuits) qualify as literary works? Although the Copyright Act itself is not so clear on this point, it would seem to me that the answer is yes. These comedy routines are written, practiced with painstaking detail, and then performed for an audience. The performance of a play for a crowd does not render the written script of that play any less of a literary work than if it wasn’t performed. Why should the same not be true for comedy routines?
I would expect several other comedians to sue Pandora on the same grounds. Luckily for Pandora (if there is anything lucky about this whole situation), I’m sure these cases will all be joined.
Full complaints:
Main Sequence, LTD v. Pandora Media, LLC, Case Number: 22-cv-00810 (C.D. Cal. Feb. 7, 2022)
Ron White, Inc. v. Pandora Media, LLC, Case Number: 22-cv-00813 (C.D. Cal. Feb. 7, 2022)
Robin Williams Trust v. Pandora Media, LLC, Case Number: 22-cv-00815 (C.D. Cal. Feb. 7, 2022)
Brave Lion, Inc. v. Pandora Media, LLC, Case Number: 22-cv-00817 (C.D. Cal. Feb. 7, 2022)