In the ongoing legal battle of Yellow Rose Productions, Inc. v. Pandora Media, LLC, a group of high-profile comedians, including Lewis Black, George Lopez, and the estates of Robin Williams and George Carlin, has filed a motion for partial summary judgment claiming that Pandora is infringing on their copyrights by streaming over 2,000 comedy routines without the necessary licenses. In response, Pandora contends that its existing licenses from record labels sufficiently cover these performances. Not only does this case raises critical legal questions regarding the scope of rights necessary to license non-musical content like comedy, podcasts, and audiobooks in the streaming era, but is emblematic of broader shifts in the entertainment industry, where traditional boundaries of copyright law are being tested by emerging technologies and distribution methods, prompting content creators to be increasingly proactive in safeguarding their rights and monetization opportunities.

The central issue in this case is whether licenses for sound recordings of comedy routines also cover the underlying literary content or —in this context, the jokes themselves. While Pandora secured licenses from record labels for the sound recordings of the comedy performances, it did not seek a separate license from the comedians or their licensing companies for the underlying routine as embodied in the sound recording, asserting that such rights are implicit in the license granted by the record label. The comedians have contended that Pandora engaged in copyright infringement by broadcasting their comedy routines without securing a license in the underlying work, akin to the streaming of musical works, where separate licenses are required with respect to the master sound recording and underlying composition.

Pandora claims its practices align with industry custom where spoken-word comedy has always been licensed “at source”—that is, through licenses with record labels or distributors which “pass-through” all necessary rights from the comedians, including for underlying comedy routines. In its motion for summary judgement, Pandora purports that this custom differs from licensing in the music industry due to the “anomalous issue that uniquely impacts music: the uncompensated performances of songs played by someone other than the songwriter”. According to Pandora, licensing comedic performances does not face the same issues inherent in the “dysfunctional” world of music, given that comedians are both the writers and performers of their material.

Contrary to Pandora’s assertions, the comedians contend that discovery has evidenced that virtually all plaintiffs have entered licenses with third parties providing for royalties for their routines separate and apart from sound recording royalties. The comedians argue that their dual role as both performers and writers does not negate the need for separate compensation for each aspect of their work, and that the rights to their literary content remain distinct from the rights to the sound recordings of their performances, regardless of whether they are the same person.

The comedians also refute Pandora’s claims regarding its agreements with record labels and distributors, arguing that the plain language of such agreements not only explicitly excludes any license to underlying rights, but actually requires Pandora to obtain such rights and pay any resulting royalties. Pandora maintains that its licenses clearly cover all elements of the sound recordings necessary for public distribution, excluding only musical compositions.

The outcome of this case could set a significant precedent for how streaming platforms handle licensing for non-musical content, potentially leading to broader industry-wide changes. If the court sides with the comedians, streaming platforms may start negotiating more comprehensive licensing agreements, not just for comedy, but for other spoken-word content like podcasts and audiobooks. Whether you are a content creator, distributor, or digital service provider, it is essential to continually assess your licensing strategies to ensure compliance and that your intellectual property rights are safeguarded in this evolving market and legal landscape.