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Comedy content removed from Spotify in dispute over joke copyrights

By | Published on Thursday 2 December 2021


As Spotify continues to battle with American songwriters before the Copyright Royalty Board – which basically sets the rate that most streaming services pay writers and music publishers in the US – the streaming firm has seemingly kicked off a new battle with another group of creators, this time comedians.

A stack of comedy content – including recordings from the likes of John Mulaney, Jim Gaffigan and Kevin Hart – suddenly disappeared from Spotify last week, much to the confusion of at least some of the comedians whose comedy albums stopped streaming. It has since transpired that that development is most likely the result of a good old fashioned rights dispute.

When music streams on platforms like Spotify, two separate sets of copyright are being exploited, the rights in the recording and the rights in the song contained in the track. Because the music industry has traditionally managed and licensed recording rights and song rights separately and differently, streaming services need two sets of licences – one for recordings and one for songs – and need to pay out both recording royalties and song royalties.

But what about spoken work content like comedy? Well, technically there are two sets of rights there too, ie there is copyright in the recording and a separate distinct copyright in the words being spoken – so in the jokes with comedy – which legally speaking are literary works. However, when comedians and comedy labels upload content onto services like Spotify, they are only usually providing a licence for the recording, not the material contained within it.

Given that when it’s recorded music being streamed an additional royalty is paid for the song rights, an increasing number of people in the comedy and spoken work communities argue that they should also be getting an additional payment in relation to the exploitation of their literary works.

Indeed, if a literary work licence isn’t included when a comedy track is uploaded – and a streaming service doesn’t separately secure such a licence for the literary work in some other way – then copyright is being infringed whenever that comedy track is streamed.

In the US, at least two organisations have set up to try to deal with this issue, including Word Collections led by TuneCore and Audiam founder Jeff Price, and Spoken Giants, launched by the founders of comedy label 800 Pound Gorilla Records and a former exec from US song rights collecting society BMI, Jim King.

It is seemingly a run-in with the latter that has led to comedy content disappearing from Spotify. One affected comedian, Gianmarco Soresi, last week shared a note he’d received from Spoken Giants on Twitter.

That note read: “It appears that Spotify has started to take down comedy as a category, affecting your works and the works of other comedians both from Spoken Giants and elsewhere. We do not have an agreement with Spotify and this must be an indication they know they don’t have all the rights in place to serve this content. We are working to contact Spotify to determine what the issues are and respond accordingly”.

Then, yesterday, Spoken Giants posted an update to its own Twitter account. It said: “Spoken Giants did not demand or even request that Spotify take down any comedy content. Spoken Giants wants the jokes written by the comedians it represents to be heard and enjoyed by as many people as possible across as many platforms as possible. Spoken Giants just wants comedians to be paid for the jokes they write, just like songwriters get paid for the songs they write”.

“Spotify unilaterally decided to take the content down on the night before Thanksgiving when everyone was about to begin a four-day holiday – just as we were all about to slip into a food coma”, it went on. “It’s unfortunate that some record labels are being negatively impacted by Spotify’s decision to take down comedy content simply because Spoken Giants is trying to get Spotify to pay comedians for the jokes they write”.

It then concluded: “Bottom line: we do not know when or if Spotify will put this comedy content back on its service. For now, millions of fans of great comedy are unable to hear their favourite comedians on Spotify because Spotify refuses to pay comedians for the jokes they write. Spotify pays songwriters when their songs are played but doesn’t pay comedians when it plays the jokes comedians write. We think all creators should be paid. Period”.

It’s not currently clear how much comedy content is impacted by this rights dispute, nor whether it is impacting that content in all markets.

The potential damages that can be awarded by a court if a streaming service is found liable for copyright infringement are generally much higher in the US, which will inevitably make digital platforms much more nervous about hosting potentially unlicensed content within America, even when copyright owners are not actually demanding any content be removed.

It will be interesting to see what happens next. Meanwhile, the dispute should heighten awareness across the comedy and spoken word communities that comedians and other creators outside of music might actually be due additional royalties if their content is streaming on platforms like Spotify.

Of course, with music, the royalties paid out on the songs side are much lower than on the recordings side, so on a per play basis the extra pay out for literary works will probably be nominal. Which isn’t to say those extra royalties shouldn’t be collected, obviously, though many comedians like musicians know that total Spotify payouts are generally quite modest until you’re scoring millions of plays a month.

Indeed, in another tweet, Soresi joked: “Spotify took my album off their platform but luckily I found a penny on the street today so I won’t notice the difference for a couple years”.

UPDATE 2 Dec 2021, 3.15pm: Commenting on this story, a Spotify spokesperson has told CMU: “Spotify has paid significant amounts of money for the content in question, and would love to continue to do so. However, given that Spoken Giants is disputing what rights various licensors have, it’s imperative that the labels that distribute this content, Spotify and Spoken Giants come together to resolve this issue to ensure this content remains available to fans around the globe”.

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