On Nov. 24, the day before Thanksgiving, Spotify quietly took down many of the comedy recordings it offers, including spoken performances from major comics such as Mike Birbiglia and Jeff Foxworthy, amid a dispute with the new collection society Spoken Giants.
These takedowns are just the most visible sign of a behind-the-scenes push to get comedians and other spoken word artists royalties for their underlying works, as well as for their recordings.
Just as every recording involves two copyrights — the recording itself, as well as that of the song being performed — a spoken word performance involves a recording but also an underlying literary work. The copyright to that literary work, just like that of a song, encompasses the elements of a performance that one can write down on a piece of paper. In comedy, this refers to written jokes — not the concepts behind them, but the way they are phrased.
Unlike music, however, comedy has lacked an organization to license and collect royalties for the public performance or reproduction of these works. (In music, the latter of these is known as mechanical rights.) Since 2019, two have sprung up: Spoken Giants and Word Collections, which aim to license and collect on spoken word works the way ASCAP and BMI work with songs.
Word Collections co-founder and CEO Jeff Price says comedians have lacked such an organization until now because they “traditionally expect to make their money off of production deals, TV shows, movies and live gigs.” In a streaming-driven business, however, this money could become far more significant. And although comedians already make royalties from their recordings, royalties from underlying literary works were being left on the table. “When the whole world moved to digital and global consumption… all of a sudden there’s a new dynamic that exists in the marketplace that hasn’t been dealt with before,” Price says.
Pandora addressed the issue in its 2015 SEC filing. “We stream spoken word comedy content, for which the underlying literary works are not currently entitled to eligibility for licensing by any performing rights organization in the United States,” the company stated. “This content is performed absent a specific license from any such performing rights organization or individual rights owners.” Later, the company addressed that there can “be no assurance” that “this industry custom will not change or that we will not otherwise become subject to additional licensing costs for spoken word comedy content.”
Sure enough, by 2019, Spoken Giants was founded to license performing and reproduction rights for literary works to Spotify, Apple, Pandora and other services. (In the music business, performing and reproduction rights are handled by separate organizations.) By 2020, as Spoken Giants was building its membership, Word Collections formed and started conversations with streaming companies. Spoken Giants began its own talks with streaming platforms in Spring 2021.
Spoken Giants is “modeling itself after the music industry,” CEO Jim King told Billboard earlier this week. (A representative for Spoken Giants declined to comment for this story.) “We don’t want any more or any less than what a songwriter or another type of creator might receive for their royalty.”
Word Collections has a slightly different approach. “We don’t want to break the system,” says Price. “We want to be efficient and work within what everyone is used to.” In music, however, ASCAP and BMI operate under antitrust consent decrees that constrain their ability to negotiate, and mechanical royalties are determined by a “rate court”; Spoken Giants and Word Collections are unregulated, with the ability to negotiate in the free market. “Frankly, if the rate court wants to decrease the amount of money being paid to songwriters, that’s not something I’d be willing to accept on behalf of my clients,” Price says. “I don’t think that’s right or fair.”
So far, Price says that Word Collections hasn’t reached any blanket performing licenses with streaming services, but he has taken in money for reproduction rights from “record labels, which appears to be tied to physical and downloads.” The difficulty, Price explains, is that forging a deal with Word Collections will be “replicable for everyone else.” Fearful of setting a precedent, negotiations have been slow. (Reps for Apple, Amazon and Pandora did not return a request for comment; a rep for Spotify declined to comment.)
On the reproduction rights side, the rights aren’t always easy to sort out. Some comedy labels may have been granted the rights to underlying works for spoken word, and, in turn, to licensing them to streaming platforms. Most comedy routines, however, have been made available on streaming services without all the rights being secured. Non-dramatic musical works (songs not created for a film, TV show, or musical), can be used by streaming services under statutory license, but that does not apply to literary works.
The Music Modernization Act doesn’t apply here either, according to Jacqueline Charlesworth, a key contributor to the law and former general counsel for the U.S. Copyright Office. “It does not cover the use of the underlying work in a spoken word recording because that underlying work is a literary work,” she says. This means streaming platforms must contact and secure licenses directly from a comedian or his or her team. So far, though, this is rare.
Spotify’s Nov. 24th removal of so many major comedy recordings could well be the beginning of a larger fight from Spoken Giants and Word Collections to establish new precedents for collecting royalties on literary works. “This isn’t something that is going to go away,” assures Price. “There’s a gaping hole in the system and the streamers knew it and they continue to know it.” While Price says Word Collections would not pursue any litigation against streaming services, he says legal action in this area is “not an if, it’s a when.”
