Copyright law is a joke—literally

A funny thing happened on the way to the forum where big lawsuits are often decided. On Thursday, a group of joke tellers were accused of conspiracy — a pricing system that would threaten streamers’ ability to access the comedy market. The development comes in an ongoing affair that may change the laughter business forever.

In February, the estates of deceased actors Robin Williams and George Carlinas well as live comics Andrew clay dice, Nick Di Paolo and Ron White each filed claims against Pandora Media. They are upset over the lack of payment for using old comedy routines. According to the since-consolidated lawsuit in California federal court testing unpublished copyright theories, jokers, like songwriters, have the right to protect the composition of their work from unlicensed performance. For years, streaming services ignored joke writers when clearing the rights, but that may now change if there are accusations of mass infringement. “Pandora did what most goliaths do: it decided it would infringe now to ensure it had this very valuable IP on its platform to stay competitive and face the consequences later” , says the complaint. “Later is now.”

Pandora, represented by law firm Mayer Brown, is now asserting a significant counterclaim against those same comedians and Word Collections, a performing rights organization (PRO) that managed to win royalties for clients. “Word Collections and its co-conspiratorial comedians did not just engage in naked horizontal price-fixing,” states the counterclaim (read in full here). “By assembling its portfolio of rights to the works of conspiratorial comedians, Word Collections also presents a real threat of gaining monopoly power in the market for the rights to perform, distribute and reproduce comic routines embodied in comedy recordings. , power it can and will wield over Pandora and other services that offer comedy.

While a comedian cartel might look like the setup of a bad joke, the truth is what’s happening now is like something that happened in the mid-20s.and century when the Justice Department filed antitrust suits against song publishers for conspiring to license radio stations. Upon settling, ASCAP and BMI, two giant music industry PROs, entered into consent decrees that are still in effect to this day. As a result, ASCAP and BMI must offer blanket licenses to music users, and whenever there is a dispute over terms and conditions, a federal judge determines what is fair. So restaurants, bars, sports stadiums, and most other places where you hear music through speakers don’t have to negotiate licenses with each songwriter individually. They can access a bulk song catalog by paying a judicially reviewed fee to ASCAP and BMI.

Of course, IP is essentially a government-sanctioned monopoly (e.g. Disney gets control of toy story market), and so it’s no surprise that when someone claims bold, new intellectual property – as these comedians do – someone else responds with an antitrust counterclaim, testing whether the government will really tolerate a such market manipulation. Especially in view of concerted efforts by owners to promote their works. That’s what we’ve seen in the music industry. Over the years, even after the ASCAP and BMI deals, there have been other antitrust cases regarding song licensing. Generally, it is because a new technological means (TV, Internet, ringtones…) of exploiting the music appeared or because a dissident group of songwriters and publishers authorized someone other than ASCAP and BMI to represent them. Most notably, a dispute in the late 1970s over television music went all the way to the Supreme Court, which then ruled that offering blanket song catalog licenses was not presumed illegal. Nevertheless, litigation has persisted in other contexts, with licensors finding it harder to evade antitrust complaints.

With this new development in the comedy lawsuit against Pandora, expect to learn a lot more about the market for laughs, as antitrust litigation tends to focus on defining markets and determining damages. But if plaintiffs can convince a judge that performing jokes is copyrightable despite decades of near-no enforcement, we could see a new paradigm emerge for comedy licensing that should have an impact. on comedians and streamers even beyond the actors involved in this particular case. . It sounds a lot like the early stages of something that could become structurally transformative.

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