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?
Continue Reading Public Performance Royalties for Comedy Recordings? – New PROs Claim that Additional Royalties Are Due