Comedian Louis Black filed a lawsuit against SiriusXM-owned audio streaming company Pandora on Thursday, arguing that the company played recordings of his performance without obtaining copyrights to his written work.
It's the latest escalation in the chaotic battle between comedians, instrumentalists and performing rights organizations who have recently stepped in to standardize spoken word copyright in the digital age. This suit, along with some others filed against Pandora, seeks to repay millions of dollars in copyright money and radically change the way comedy jobs are copyrighted. If comedians win, it could have a big impact on Pandora, Spotify, and other podcasters.
Black, who rose to national prominence with his regular appearances on the Daily Show, sued for a total of $10.2 million. "One would think that entertainment giants like Pandora would honor the legacy of this incredible talent, but instead chose to illegally exploit Louis Black's creative spirit and literary/comedic works," the lawsuit reads. Black and Pandora could not be reached for comment.
The lawsuit is based on the idea that comedy albums, like music, have two copyrights for which broadcasters must pay royalties: one for the recording and one for the publication or the written work of the material it was recorded on. Although comedians and their production companies typically receive paid royalties for their recording rights, copyrights in spoken word content (such as comics) have been largely ignored by broadcasters, and sometimes even denied outright.
Black's case follows a series of similar lawsuits brought by comedians such as Andrew Dice Clay and Nick DiPaulo, and the estates of Robin Williams and George Carlin, represented by performance rights organization Word Collections. Those lawsuits, originally filed in February, were consolidated in a suit by the judge in March. Black is representing another performance rights organization, Spoken Giants, although she is not a party to the lawsuit.
"Without the written work, there would be no recording and no live performance," Spoken Giants CEO Jim King said in a statement. “The incredible cost of this fight would be better spent just paying for it. The intellectual property they stream to their millions of subscribers.”
Lions openly entered the fray in December when Spotify removed Comedy Albums and competed on its platform for comedians like John Mulaney and Tiffany Haddish after talks between Spoken Giants and streamers collapsed. Out of solidarity, he called for his albums to be removed. "It took a long time for comedy to be recognized as an art form," he said at the time. "So Spotify should recognize that the joke is as strong as the lyrics of the song they're paying for."
The dispute with Spotify has not yet led to a lawsuit. And part of the reason Pandora's suit is moving so quickly (even if it's not as big a player as Spotify) might be because of the language the company has been using. in the financial file that preceded the acquisition of SiriusXM. In 2017, Pandora's commitments included airing the comedy without receiving copyrights. "This allows third parties to assert copyright claims against us," the company wrote.
In its response to the combined lawsuits in May, the company argued that it did the right thing because copyrighting spoken word content is not industry standard, comedians benefit from the exposure they receive on Pandora, and Pandora is not profitable while it is are labels for comedy recordings. The company also responds to damages.
Pandora's arguments may not be strong enough to refute the claims. They say paying royalties will be difficult. There's no question about that — it's going to be tough, said Terence Ross, intellectual property attorney, partner at Katten Muchin Rosenman. "Unfortunately, this is not a significant defense of the copyright allegation."
Losing is a very expensive proposition for Pandora. Comedians are suing $150,000 for each allegedly infringing act for a total of more than $70 million. It could also set a precedent for other comedians to sue streamers for similar damages.
Aside from immediate financial damage, changing the way copyright functions are spoken could fundamentally change the way operators do business. Spotify in particular has leaned heavily on talk content like podcasts and soon audiobooks because they're much cheaper than music. If such works are also protected by copyright, these are additional costs that Spotify and other operators have to bear.
