Comedian Lewis Black filed suit against SiriusXM-owned audio streamer Pandora on Thursday, arguing that the company ran recordings of his performances without obtaining the copyright to his written work.
It is the latest escalation in the messy fight between comedians, streamers, and the performing rights organizations that have recently stepped in to standardize spoken-word copyright in the digital age. This suit, along with several others filed against Pandora, seeks back pay for millions of dollars worth of publishing royalties and to fundamentally change the way copyright for comedy functions. If the comedians win, it could have major ramifications for Pandora, Spotify, and other audio streamers.
Black, who rose to national prominence with his regular appearances on The Daily Show, 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 it chose to illegally profit from the creative mind and literary/comedic works of Lewis Black,” the suit says. Black and Pandora were not immediately available for comment.
The suit is based on the idea that, like in music, comedy albums have two copyrights for which streamers must pay royalties: one for the recording and one for the publishing, or the written work of the material that was recorded. Although comedians and their labels are normally paid royalties for their recording rights, publishing rights for spoken-word content (like comedy) have been largely ignored, and sometimes outright denied, by the streamers.
Black’s lawsuit follows a slew of similar legal actions from comedians like Andrew Dice Clay and Nick Di Paolo as well as the estates of Robin Williams and George Carlin, which are represented by the performing rights organization Word Collections. Those suits, initially filed in February, were consolidated into one lawsuit by the judge in March. Black is represented by another performing rights organization, Spoken Giants, though it is not party to the suit.
“The comedy community stands firm in their belief that their written work has value. Without the written work, there would be no recordings and no live performances,” said Spoken Giants CEO Jim King in a statement. “The staggering costs of this battle would be better spent simply paying for the intellectual property they stream to their millions of subscribers.”
Black first publicly entered the fray in December when Spotify removed disputed comedy albums from its platform by comedians like John Mulaney and Tiffany Haddish after negotiations between Spoken Giants and the streamer broke down. He asked that his albums be removed in solidarity. “It has taken 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 a lyric of a song, which they do pay for.”
The spat with Spotify has not yet resulted in a lawsuit. And part of the reason why the Pandora suit is moving more quickly (even if it is not as big a player as Spotify) could be because of language the company used in a financial filing predating its acquisition by SiriusXM. In 2017, Pandora listed among its liabilities that it streamed comedy without obtaining publishing rights. “Third parties could assert copyright claims against us as a result,” the company wrote.
In its response to the combined lawsuits in May, the company argued that it has been correct in doing so because publishing rights for spoken-word content have not been the industry custom, comedians benefit from the exposure they get on Pandora, and Pandora is not profitable while the comedy record labels are. The company is also countersuing for damages.
Pandora’s arguments may not be strong enough to ward off the suits. “They’re saying that it would be hard to pay out the royalties. That’s unimpeachable — it will be hard,” said intellectual property litigator Terence Ross, who is a partner at Katten Muchin Rosenman. “Unfortunately, that’s not a cognizable defense to a copyright charge.”
Losing is a very, very expensive proposition for Pandora. The comedians are suing for $150,000 for each allegedly infringed work 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 the immediate financial damage, a change in the way spoken-word copyright functions could also fundamentally change the way streamers do business. Spotify, in particular, has been leaning hard on talk content like podcasts and, soon, audiobooks because they are so much less expensive to stream than music. If those works are also entitled to publishing royalties, then that is another cost that Spotify and other streamers will have to take on.