Pandora Receives Not-So-Funny Lawsuit for Infringing Comedians’ Copyrights

On February 7, 2022, streaming service Pandora was sued by comedians Andrew Clay, Bill Engvall, Ron White, and the estates of Robin Williams and George Carlin on claims of copyright infringement in California Central District Court.¹[1]Yellow Rose Productions, Inc. v. Pandora Media, LLC (C.D. Cal.) (2:22-cv-00809). The suit claims that Pandora has been shortchanging the plaintiffs by neglecting to obtain the necessary rights to stream their works.²[2]Winston Cho, Pandora Sued by Major Comedians Over Licensing Fees for Writing Jokes, HOLLYWOOD REPORTER (Feb. 7, 2022), https://www.hollywoodreporter.com/business/business-news/pandora-sued-by-major-comedians-over-streaming-fees-for-writing-jokes-1235088564/. This is a common issue within the comedy world, as the laws surrounding streaming rights for spoken-word recordings differ from that for musical compositions.

Music compositions are covered by two distinct copyrights.³[3]Id. The first is for the actual audio recording, which is typically owned by the record label or distributor affiliated with the artist.⁴[4]Id. The second is for the underlying musical composition, which is owned by the music publisher or collecting society affiliated with the artist. The copyright for the audio recording covers the musical performance – what is actually heard by the listener. The second copyright for the musical composition covers the lyrics and writing of the song. Audio copyrights are either licensed in-house if the artist belongs to a large label and through SoundExchange.⁵[5]Licensing 101, SOUNDEXCHANGE, https://www.soundexchange.com/service-provider/licensing-101/. (follow “Licensing 101” hyperlink; then scroll to “I already pay royalties to ASCAP, BMI, and/or SESAC. Why do I have to pay SoundExchange, too?”). For the musical composition copyrights, streaming services such as Pandora and Spotify typically enter into public licensing agreements with performance rights organizations (PROs).⁶[6]Id.

The main difference with comedy and spoken-word copyright licensing is that there is only one copyright involved – that for the recording itself, or what the listener actually hears.⁷[7]Id. Currently, no copyright is typically licensed for the underlying written jokes as there is for written lyrics of songs.⁸[8]Id. Additionally, PROs do not issue licenses for spoken-word works, and the streaming platform consequently must seek out the copyright owners directly to get valid licenses.⁹[9]Id. The company Word Collection, which administers and collects royalties for literary works, is attempting to operate similarly to a PRO for spoken-word and encourage a two-copyright standard similar to the industry practice for musical works.¹⁰[10]Id. As the world of podcasts and news streaming expands, it is important for licensors to understand the procedures for obtaining rights in spoken-word recordings.

Word Collection is working with the plaintiffs’ lawyers, specifically, Richard Busch from King & Ballow who represents the estates of Williams and Carlin and is leading the case against Pandora.¹¹[11]Id. Word Collection had warned Pandora of its copyright infringements for the past few years with no success of changing Pandora’s copyright practices.¹²[12]Nancy Dillon, Families of Robin Williams and George Carlin Say Pandora Needs To Pay Up for Streaming, ROLLING STONE (Feb. 7, 2022), https://www.rollingstone.com/music/music-news/robin-williams-george-carlin-pandora-copyright-lawsuit-1296362/. The comics are seeking $150,000 per infringement, totaling $8.4 million for Carlin’s estate, $4.1 million for Williams’ estate, and $41.55 million for all of the comedians combined.¹³[13]Nate Jackson, Anousha Sakoui, Joe Rogan $100 million. Richorad Pryo $0. What comedians’ suits against streamers say about a deeply flawed model, LOS ANGELES TIMES (Feb. 16, 2022), https://www.latimes.com/entertainment-arts/business/story/2022-02-16/joe-rogan-100-million-richard-pryor-0-what-comic-suits-against-streamers-say-about-a-deeply-flawed-model; see also Cho, supra note 2. An additional suit was filed against Pandora roughly one month later by comedian Nick Di Paolo seeking $21.3 million for similar claims.¹⁴[14]Chris Cooke, Pandora faces another comedy lawsuit over unlicensed jokes, COMPLETE MUSIC UPDATE (March 2, 2022), https://completemusicupdate.com/article/pandora-faces-another-comedy-lawsuit-over-unlicensed-jokes/.

The complaints were all consolidated into a single copyright claim against Pandora in late March of 2022.¹⁵[15]Adam Lidgett, Comedians Consolidate Pandora Copyright Suits, LAW360 (March 30, 2022), https://www.law360.com/articles/1479034/comedians-consolidate-pandora-copyright-suits. Since filing suit, each comedian’s catalogue has been removed from Pandora’s platform.¹⁶[16]Id. The consolidated complaint argues that this prompt removal shows that Pandora knew they were committing copyright infringement.¹⁷[17]Id. Intellectual property experts are claiming that the suit could be “game-changing” for how comedians are paid for their recordings.¹⁸[18]Dorothy Atkins, Comedians Get Serious About Copyright Law In Pandora Suits, LAW360 (Feb. 16, 2022), https://www.law360.com/articles/1465411/comedians-get-serious-about-copyright-law-in-pandora-suits. If the plaintiffs can prove willful infringement, Pandora will be subject to the maximum statutory damages of $150,000 per infringed work.¹⁹[19]Cooke, supra note 14.

Further, the plaintiffs argue that the continuous practice of infringement has propelled Pandora’s valuation higher and positioned it for a $3.5 billion sale to Sirius XM Radio.²⁰[20]Dillon, supra note 12. Pandora disclosed in an SEC public filing that from 2011 to 2017 it had not obtained secondary licenses for spoken-word comedy.²¹[21]Adkins, supra note 18. Pandora said in the filings that it “could be subject to significant liability for copyright infringement and may no longer be able to operate under [their] existing licensing regime.” ²²[22]Id. However, this admission was removed when Pandora was acquired by Sirius in February of 2019.²³[23]Id. The plaintiffs’ claim that Pandora knew it was using the comedians’ works without licenses and continued regardless and to their benefit.²⁴[24]Cooke, supra note 14. A representative for the plaintiffs stated, “The bottom line is that Pandora’s actions were willful and they knew they had their hand in the cookie jar and would eventually get caught – it was just a matter of when.” ²⁵[25]Id.

Pandora is not the only streaming service to have licensing issues with comedians.²⁶[26]Jackson, Sakoui, supra note 13. Spotify removed various performances from comics who were represented by rights organizations (like World Collection) including John Mulaney, Jim Gaffigan, Tiffany Haddish, and Kevin Hart.²⁷[27]Id. The comics allege that their content was removed because they complained about royalty payments.²⁸[28]Id.

Comedians not getting the streaming royalties that they rightfully deserve is an all-too-common reality in the industry. Comedian and plaintiff Bill Engvall said it best, “None of us are asking for any more than what we’re owed.”²⁹[29]Id. The comedians suing Pandora hope that they can pave the way for all comedians regarding copyright protection and enforcement.³⁰[30]Id. As comedian Nick Di Paolo once said, “[Comedy] is like pizza, even if it’s bad you still gotta pay for it.”³¹[31]Cooke, supra note 14.

The lawsuit is captioned Yellow Rose Productions, Inc. v. Pandora Media, LLC.³²[32]Dockets, Yellow Rose Productions, Inc. v. Pandora Media, LLC, LAW360, https://www.law360.com/cases/620148e3c71c8702c6a7c715/dockets?page=1. It is pending in California Central Court in front of Judge Scarsi.³³[33]Id. The parties have begun the litigation process, and the initial order setting the Rule 26 Scheduling Conference has been submitted as of May 6, 2022.³⁴[34]Id.

Written by: Angela Lauters
Angela is a 2024 J.D. Candidate at Brooklyn Law School