A group of comedians who sued Pandora over allegations the US digital platform streamed their comedy routines without securing licences that covered their jokes have been dealt a setback. A retired judge asked to review the case has recommended that the court conclude Pandora had an implied jokes licence, and therefore hasn’t infringed any comedy copyrights.
According to a court report by retired judge Suzanne Segal, who was appointed as a ‘special master’ to review this case, Pandora was right to infer it had an implied licence covering the comedians’ material.
Because said comedians “undisputedly knew for years that their routines were streaming on Pandora”. And “for nearly a decade” – from “the launch of Pandora’s comedy offering” until the creation of two new agencies that license comedy rights – “they never objected”.
Unsurprisingly, the lawyer representing the comedians – Richard Busch – does not agree. “Taken to its logical conclusion”, he writes in a response, Segal’s position would mean payment “for one copyright from any source” could “create an implied licence on a completely different and separate unlicensed copyright”.
He wants the judge overseeing the case, Mark C Scarsi, to reject Segal’s recommendation to grant a summary judgement in Pandora’s favour.
This dispute centres on whether or not streaming services that carry spoken word content need two licences per piece of content – one for the recording and one for the written material contained in the recording – in the same way streaming services get two licences for a musical track – one for the recording and one for the song or composition contained in the recording.
Whereas in the music industry there are established licensing frameworks for both recordings and songs, with spoken word – until a few years ago – it wasn’t clear who, if anyone, was licensing the rights in the written material.
Two companies have since launched in the US to handle such licensing, Spoken Giants and Word Collections. The latter of those companies is involved in this legal battle, as are comedians Lewis Black, Andrew Dice Clay, Bill Engvall and Ron White, and the estates of Robin Williams and George Carlin.
Pandora doesn’t dispute that it failed to secure bespoke and explicit licences covering the rights in the comedians’ material. However, it argues that it was justified in assuming that a licence covering those rights had been implied when it accessed recordings of their performances from the relevant labels and distributors.
Among other things, it argues that some of the comedians involved in the case “admitted that they intended to convey all rights necessary for their record companies and distributors to license streaming services like Pandora”.
Plus all the performers “knew for years that their routines were streaming on Pandora, yet never objected” and “accepted royalties for years without ever claiming to be owed anything more”. And some of the comedians even “encouraged Pandora to stream their routines”.
In response, the comedians’ legal team said Pandora’s arguments were based “on the false premise that it is a recognised ‘custom and practice’ not to license literary works or pay comedians mechanical royalties”. And even if it was ‘custom and practice’, that “cannot override the statutory law and does not provide a legal defence for Pandora”.
But after a lengthy review of the relevant case law – and the licensing deals between Pandora and the labels and distributors that provided the comedians’ recordings – Segal sided with the streaming service, concluding it is not liable for copyright infringement for streaming the comedians’ routines. For various reasons, but mainly because it had an implied licence for all the jokes.
We now await to see whether Judge Scarsi accepts her recommendation.
