For the past few weeks, music fans have been watching the Joe Rogan mess and marveling at the power held by India Arie, Neil Young, Joni Mitchell, and other musicians who are pulling their work from Spotify over Rogan’s past racist comments or his recent openness to anti-vaccine quackery. Not me. What I see are thousands of other pop, rock, and hip-hop stars who might be inclined to join the protest but, for various reasons, cannot. Why? The answer is complicated—and explained, in part, by the specter of Spotify’s next P.R. and business nightmare.
Today, I’ve learned, the estates of the late comedians Robin Williams and George Carlin, as well as the very-alive comics Bill Engvall, Andrew Dice Clay and Ron White, have all filed lawsuits against Pandora, one of Spotify’s chief competitors, over the streaming rights to comedy albums. The argument is that whatever audio Pandora has licensed from record labels doesn’t include the actual jokes. To quote one of the five complaints filed in California federal court, Carlin “retained all rights in the underlying literary compositions,” so Pandora, lacking a proper license, “chose to infringe.”
Expect more lawsuits from other top comedians. Pandora is the first target—for reasons I’ll explain later—but Spotify, SiriusXM, and perhaps others will inevitably become defendants as well. Two months ago, Spotify signaled that trouble was brewing when it pulled some comedy content after facing new royalty demands. But what few knew at the time was that attorney Richard Busch was preparing a litigation blitzkrieg.
Busch, a Los Angeles- and Nashville-based entertainment lawyer who famously won the 2015 copyright trial alleging that Robin Thicke’s earworm Blurred Lines too closely mimicked Marvin Gaye’s Got to Give It Up, is now claiming that well-known comedy routines like Carlin’s “Seven Dirty Words” are being streamed without a penny going to the comedians and their heirs. That’s a potentially explosive allegation. According to Edison Research, spoken word content accounts for about a quarter of listening on audio services.
The newest suits are no slam dunk. In fact, they’re quite adventurous, raising legal issues that have never been tested in court. And that brings us back to music, as it’s nearly impossible to appreciate the legal claim here without drawing analogies and contrasts.
Under federal law, anyone who writes an original song is entitled to a copyright for the composition. Neil Young gets one to protect “On the Beach” and Joni Mitchell has one for “A Case of You.” Additionally, anyone who records a song is entitled to a copyright for the result. While two copyrights for every recorded song might be confusing, consider who gets paid from a cover version. When Radiohead records “On the Beach,” for instance, the law rewards those responsible for the lyrics and musical arrangement, as well as those who later stepped into the studio and recorded the underlying composition.
Comedy could be framed similarly, but traditionally, it hasn’t been. There are those who write the jokes, and then there are those who tell them in front of a recording device. Very often, it’s the same comedian, and if there’s a reason why this issue wasn’t raised years ago, it’s probably because comedy is seen as more of a performative art than a literary endeavor. As the U.S. Copyright Office puts it in its guidance on registering stand-up routines, “Generally, literary works are intended to be read; they are not intended to be performed before an audience.” In other words, in the world of comedy, there’s always been less emphasis on protecting the composition. No wonder, then, that many streaming services have ignored joke writers when clearing rights. Obtaining a license from those who own the recordings has been deemed sufficient.
That said, there’s long been some quiet concern that a better standard is needed. From 2011 to 2017, until Pandora was acquired by SiriusXM, the streamer highlighted spoken word materials as a “risk” in its S.E.C. filings: “While pursuant to industry-wide custom and practice this content is performed absent a specific license from any… performing rights organization, there can be no assurance that this will not change or that we will not otherwise become subject to additional licensing costs for spoken word comedy content imposed by performing rights organizations in the future or be subject to damages for copyright infringement.”
Pandora basically saw this coming. Now, the heirs of Williams and Carlin are going to court, and together with other comedians, they allege that the streaming service screwed up. “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 complaints state. “Later is now.”
The “custom and practice” of bilking comedy writers will likely become a central point in this litigation. Again, we must draw an analogy to music. And here’s also where Spotify’s recent battle over Rogan comes into play.
The truth is that most musicians have very little power over where their music plays. Recall that every recorded song embodies two copyrights. Record labels typically own rights to sound recordings, as these corporate giants front the cost to record the songs. As for the compositions embodied in the recordings, the industry custom has been for songwriters to sign over rights to publishers and labels. The songwriters get royalties, but they give up control. Meaning that most musicians really can’t remove their work from Spotify, at least not without a record label intervening—and even then, there may be licensing contracts standing in the way. Even someone like Taylor Swift, who is re-recording her old albums to gain control over her work, has limited power. She might be able to pull those new versions from Spotify, but there’s nothing she can do about the old ones.
It’s actually even more complicated than that, because most artists enter into deals to allow third parties to collect their licensing fees and then distribute them as royalties. When it comes to the performance of compositions, BMI and ASCAP—the two largest performance rights organizations, which administer such rights—have been operating under a consent decree whereby they must provide blanket licenses to the songs in their repertoire upon request. There are some exceptions, and those consent decrees are regularly re-examined by the Justice Department, but by and large, songwriters are severely limited in whether they can stop the broadcast of their songs.
How does this relate to comedy? Pandora, Spotify, and the others will surely argue that by custom and practice, any comedian who both wrote the jokes and then performed the routine, assigned those rights (at least implicitly) to the entity that made the recording. Eventually, those recordings were licensed, and so too were the underlying jokes. This sounds logical but it’s a messy argument because unlike music, there isn’t a consensus about who owns what in the comedy world. Accordingly, those licensing contracts could be susceptible to multiple interpretations. This all sets the stage for high-stakes lawsuits. Each is potentially worth millions of dollars, and just as importantly, if Busch prevails, comedians everywhere will have the power to remove many of their old works from streamers.
It’s hard to predict an outcome in these cases, precisely because comedians have for decades avoided courtrooms—even though joke theft is a widely discussed phenomenon. In fact, before Rogan was a podcast star, he was a stand-up who famously confronted Carlos Mencia at The Comedy Store in Los Angeles and accused him of plagiarism. Rogan then posted a video on YouTube of Mencia telling jokes of other comedians. But Rogan never sued. Perhaps his current employer would have benefitted if he had created some legal clarity there.