Pankhuri Malik is an IPilogue Writer, IP Innovation Clinic Fellow, and an LLM Candidate at Osgoode Hall Law School.
Streaming giant Pandora has been hit with multiple copyright infringement lawsuits. In early February 2022, Pandora was sued in a series of lawsuits from the estates of comedians such as Robin Williams, George Carlin, Bill Engvall, and Ron White for publicly broadcasting, reproducing and distributing their copyright protected content without obtaining licenses.
Initial lawsuits
Pandora was named in a series of copyright infringement suits in early February this year that were later combined into one consolidated action before the United States District Court in the Central District of California.
The plaintiffs contended that comedy works are subject to the same copyright rules as musical works. This means that, like musical works, comedy works are also subject to two separate copyrights: one in its recording and one in the underlying literary work. While musical works are licensed as two separate rights accordingly, comedy works are only licensed as recordings without the underlying literary license. The plaintiffs contend that this constitutes copyright infringement.
According to Pandora’s own reports, in January 2022, Bill Engvall, George Carlin, and Ron White garnered 227,000, 81,000, and 233,000 monthly listeners, respectively. The total valuation for damages in the suit exceeds $70 million.
The tussle between comedians and streaming services is not new. Following pressure from artists for appropriate licensing and royalties for the underlying literary content, Spotify recently chose to remove content belonging to multiple comedians that are represented by literary works rights agencies, such as John Mulaney, Kevin Hart, Jim Gaffigan, Larry the Cable Guy, and Jeff Dunham.
However, Pandora’s case is distinguished by its alleged admissions of copyright infringement in filings to the United States Security and Exchange Commission (SEC) from 2011 to 2017. The plaintiffs claim that Pandora admitted that it does not have the necessary public performance licenses for their comedy recordings and may face copyright infringement actions from rights-owners. Following the filing of the lawsuits, Pandora has also removed the comedians’ content before issuing its response.
Pandora’s response
Pandora filed a counterclaim accusing Word Collections, the comedians’ performing rights collection agency, of anti-competitive practices. Pandora claims, as it did in its SEC filings, that its licensing of only the sound recording, without obtaining the underlying rights, conforms with “industry-wide custom and practise” and Word Collection is attempting to illegally monopolise its content in contravention of the .
Industry-Wide Custom and Practice?
While Pandora’s claim of its actions being in line with industry-wide custom and practice may not be unfounded, this is not a valid defence in a copyright infringement action.
Pandora also claims that the system of licensing rights separate from the different right owners for musical compositions is inconvenient, “broken”, and should not be adapted to cover comedy recordings. Pandora argues that unlike musical works, comedy is written and performed by the same artist and therefore does not need separate protection.
This argument, however, may not have sufficient merit since a) various musicians write and perform their own music; and b) the licensing process simply being complicated is no excuse to forego it.
What’s next?
There has been increasing backlash against Pandora, among other streaming services like Spotify, outside of Court. Another prominent comedian, Lewis Black, recently issued a public statement asking Pandora to remove his works from its platform. Black said that while he does not need the money or exposure that Pandora claims to offer, it is time for comedians to be recognized and compensated for their writing in addition to performance.
Many expect the suit against Pandora to illuminate the stance of the law going forward. If the comedians succeed, it would open a floodgate of actions against streaming services for appropriate licensing of comedic works.
