By: David Oxenford,
Wilkinson Barker Knauer LLP
In recent months, lawsuits have been filed against streaming audio service Pandora by comedian Lewis Black, the estate of Robin Williams and representatives of other comedians seeking public performance royalties for the underlying comedic work – not the recording of the comedy bit for which a royalty is already paid, but instead for the script of that comedic performance. Reportedly, Spotify has pulled comedy recordings from its service to avoid such threats. What is the issue here? The claim in the lawsuits is that the authors of the script of any comedy bit have the right to control the performance of their works in the same way that composers of a song control the rights to use that song. The argument is that, if these services are playing these comedy bits through a digital audio performance, not only do the comedians who are recorded performing such bits deserve a royalty, but a separate royalty should also be paid to those who wrote it.
In these lawsuits, the analogy is made to the copyrights for the performance of a song. For music streamed by any digital audio company, there are two royalties that must be paid. The composers of the music are paid for the performance of their work (both in the digital and analog worlds). These payments are usually made through a performing rights organization (a “PRO”) which represents thousands (or sometimes millions) of composers and their publishing companies. ASCAP, BMI and SESAC are the traditional PROs who, for radio and television, all have their rates reviewed for fairness under antitrust laws. As we have written (see for instance our articles here and here), a new PRO for musical works, GMR, has recently settled litigation with the Radio Music License Committee and is assessing most commercial radio stations a royalty for the performance of music by the composers that it represents. For digital performances, a royalty is also owned for the performance of the sound recording – the composition as recorded by a singer or band. Through an act of Congress, all noninteractive digital performances (see our article here on the difference between interactive and noninteractive services) can be played by a digital music service by paying a “collective” that acts like a PRO by collecting royalties from those services that transmit the music to their listeners and distributing those royalties to the performers and their record labels (as the labels usually own the copyright in the recording). Since the sound recording digital performance royalty was first collected about two decades ago, SoundExchange has served as the “collective.” The lawsuits by the comedians seek to collect these dual royalties from digital services that transmit comedy recordings to their listeners. Why is this not covered by the royalties that services already pay?
The consent decrees that govern ASCAP and BMI both are limited to the composers of “musical works.” Nothing is said about spoken word recordings. While not subject to these formal consent decrees, SESAC and GMR, both private companies, have also traditionally represented only composers of musical works. The statutory royalty paid to SoundExchange is not limited to musical works, so presumably any sound recording played by a digital service, including one made by a comedian, is paid to the performer and its copyright holder by SoundExchange. But, these lawsuits argue that additional royalties should also be paid for the underlying script of the comedy recording as it is analogous to the musical work or musical composition for which royalties are paid to ASCAP, BMI, SESAC and GMR. In fact, two organizations, Spoken Giants and WordCollections, have been formed to act as PROs for the composers of the works used in spoken word recordings.
Does such a right really exist? Historically, no such royalty has been claimed or collected. According to the Lewis Black lawsuit, only some of the transcripts of his performances have been registered with the Copyright Office as “literary works.” A literary work is defined by the Copyright Act as a work “expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” To be protected under the law, a work must be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” To be “fixed,” the work must be embodied “in a copy or phonorecord, by or under the authority of the author, [and?] is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Looking at these definitions, there are bound to be many questions as to whether the words that make up a comedy routine really fit within the protections of copyright. Are there really scripts that are really fixed in any tangible media? Are they “tangible or stable?” Is the fixation of the words of the comedy bit in the sound recording enough to make the work a separately copyrightable work – or is the recording really the only work?
While the analogy to music where there are two copyrights in a recorded song is tempting, in practice there seems to be many differences between comedy and music. In music, the musical composition can clearly be seen as a work separate from the sound recording. The composition is often “covered” by multiple bands or singers, who each give their own interpretation of the composition in creating their separate sound recording. Other copyrighted literary works, e.g., scripts for stage plays, are also routinely performed by others beyond the creator. In contrast, even very famous comedy bits (e.g., Abbott and Costello’s “Who’s on First,” or George Carlin’s “Seven Dirty Words”) are rarely if ever produced or performed by other artists. Is the script really perceived apart from the recording? Is that relevant to the determination as to whether the script can be separately copyrighted, or is it just a reflection of the value of the script (seemingly far less than the performance in contrast to music where the composition can be as important as the performance itself).
No doubt these and many other questions will be raised as these issues are litigated. But if there is found to be a separate copyright in the comedy routine, this would add one more liability not just to streaming services, but also to broadcasters or any other venue where comedy routines are played in public. Watch these cases, as the new comedy PROs seem intent to establish this new right.
Update, 7/13/2022, 5:15 PM – Thanks to an alert reader who caught my mistake on classic comedy routines – the proper attribution of Who’s on First.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.