Comedians Hope to Get Last Laugh in Copyright Lawsuits

Several well-known comedians (and their estates) are seeking to change the way royalty payments are paid by music streaming services that play their works...

Several well-known comedians (and their estates) are seeking to change the way royalty payments are paid by music streaming services that play their works. The estates of Robin Williams and George Carlin, along with comedians Andrew Dice Clay, Bill Engvall, and Ron White, have filed lawsuits against Pandora Media, LLC, alleging that the company should be paying royalties for the jokes themselves and not just their sound recordings.

Understanding the Two Types of Copyrighted Work

Music recordings have two recognized categories of copyrights. Each song is essentially divided into two, separate copyrighted works: a musical work and a sound recording. These works are subject to different rules and are commonly owned and licensed separately.

A musical work is a song’s underlying composition along with any accompanying lyrics. Musical works are usually created by a songwriter or composer. Meanwhile, a sound recording is a series of musical, spoken, or other sounds fixed in a recording medium, such as a CD or digital file, often referred to as a “phonorecord.” For many years sound recordings were only available to those who could afford to pay for them,  due to the cost of the creation of the recording, studio time, producers, etc. such recordings were only in the realm of a record label. New technology has allowed such sound recordings to be created by the performer themselves or with a producer. Technology has leveled the studio cost playing field.

As with music, there are two copyrights involved in the recorded performance of a literary work: a copyright in the sound recording, and a separate copyright in the underlying spoken word composition. In both cases, copyright owners have the exclusive right to, among other things, reproduce, distribute, license, and publicly perform their works. Lawfully obtaining the right to do so requires receiving a license from the copyright owner in both copyrights, and paying agreed to the applicable royalties. 

 Copyright Suit Against Pandora

Typically, comedians are paid for their sound recordings, but not their compositions. In their suit against Pandora, the comedians argue that they should be treated akin to songwriters and their performances divided into two separate copyrighted works. 

Their suit alleges that Pandora did not possess a valid public performance license and failed to pay any royalty payments for their underlying literary compositions. While music streaming companies like Pandora generally negotiate licenses to music rights with performing-rights organizations like the ASCAP, BMI, or SESAC, these organizations don’t license literary works like spoken-word comedy. 

According to the complaint, Pandora suspected that its licensing practices could result in liability. Filings with the U.S. Securities and Exchange Commission from 2011 to 2017 allegedly stated that Pandora streamed spoken-word comedy “absent a specific license from any performing rights association” and could face “significant liability for copyright infringement.” The complaint further states that “[t]his admission was only removed, not so coincidentally, after Pandora’s transaction with Sirius XM Radio.” 

Because Pandora continued to stream the comedy routines, the comedians allege that Pandora’s copyright infringement is willful. “Pandora did what most goliaths do: 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,” the complaint states. “Later is now.”

The comedians also allege that Pandora rejected efforts by Word Collections, a spoken word/literary works collection agency, to negotiate a licensing agreement on the comedians’ behalf. “While Pandora’s counsel wrote on September 14, 2021 to advise that counsel would respond with Pandora’s position about unlicensed spoken word content appearing on Pandora’s platform, no substantive response from Pandora or its counsel has been sent or received,” the complaint states.

The comedians’ lawsuits seek the statutory maximum of $150,000 for each infringement of a copyrighted work. For George Carlin’s estate, this amounts to $8.4 million; and for Robin Williams’ estate, it totals $4.1 million. Andrew Clay Silverstein’s suit seeks more than $8.56 million in statutory damages, while lawsuits filed by Blue Collar Comedy stand-up comedians Bill Engvall and Ron White claim $7.65 million and $12.4 million in statutory damages, respectively. 

Key Takeaway

As music streaming companies have become more popular, they represent a significant revenue stream for both musicians and comedians. Thus, it is not surprising that comedians are acting now to ensure that they are being paid fairly. While their lawsuits raise legitimate arguments about the royalty structure for comedic performances, it will be up to the court to determine what changes, if any, are to be made. 

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Ron Bienstock, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.