We have all seen how an appropriate and well-timed joke can sometimes influence even grim tyrants . . . The most violent tyrants put up with their clowns and fools, though these often made them the butt of open insults.
—Desiderius Erasmus, Praise of Folly
As it was said of medieval and early modern jesters – you know, the guys with the multicolored, bell-laden hats in noble courts – I think nearly everything should be potentially on the table when it comes to being the target of comedy. Of course, in return for providing the entertainment and what enlightened despots said were some necessary reminders of the need for humility, the jesters were provided with room and board in the castle (as well as the privilege of speaking truth to power without the inconvenience of losing their heads). We do things a little differently now, but the workings of the quid and the pro quo are not all that much different.
In our time of the lucrative domain of streaming audio platforms, it appears that many modern day comedians are not happy. In recent months, for example, Pandora has been sued by comedians (or their estates, in some cases) over licensing issues.
The core copyright question in dispute here seems to involve the need for two licenses to stream the performances of the jokes – one to use (and for these purposes, pay for) the underlying composition – what the creator wrote – and the second to use the recording itself – that is, the performance of the jokes (regardless of who it is who performed/recorded them). It is important to realize that, although these two rights pertain to the same copyrighted work, they are not the same right. For many years, these two rights have been recognized as distinct – as Ian Poritz, in his “Deep Dive” piece for Bloomberg, phrases it, the problem is one joke, two copyrights. This is analogous to two rights in music – the right of the composer to control the music/lyrics underlying a particular recording (that is, the composition) and the right of the performer to control the performance itself (what the industry refers to as the sound recording). The distinction in the rights has come up most often in music because of the frequency with which the two rights are in fact held by different parties – the composer usually retains the right to the composition (including the right to license it to multiple performers) while the performer’s record label usually retains the rights in the sound recording. However, even where both rights are held by the same person – and this is common in the case of recorded stand-up comedy (and only rarely in music, as Taylor Swift has finally accomplished, but only after litigation and conflict) – the two rights can be and frequently are licensed and otherwise managed separately.
As streaming audio services are relatively new, and newly popular, some uncertainty about what rights are implicated in streaming audio (whether music or spoken word) and who has to pay whom —and how much — is understandable. In the history of copyright, however, this is not the first time that new media technologies has led to novel disputes about licensing. We don’t have to go back to the age of Scott Joplin and the player-piano for our examples. Two good ones from only 20 years ago come right to mind:
- New York Times Co. v. Tasini (2001) The “Tasini” case is a relatively famous (in copyright circles at least) legal dispute, ultimately decided by the US Supreme Court back in 2001. It revolved around a particular reuse by the New York Times of freelancer-written materials and whether that reuse was authorized. The Times created and distributed (sold) CD-ROMs of materials which had been first published in the newspaper. There was no question that the paper had certain redistribution rights in the freelancer-written material as originally published (on paper and the then-traditional microform); however, CD-ROM collections or compilations of digitized textual works were relatively new at the time, and the High Court found that the paper had not acquired the rights for that reuse. Although The Times had in fact acquired one right in the freelancers’ works, it was found not to have acquired the second right that it thought it had – the one that it needed to include those works in the CD-ROMs.
- Random House v. Rosetta Books (2001): This was a New York case in the 2nd Circuit Court of Appeals which had to do with old author/publisher contracts, literally sitting in a file drawer somewhere, and the then-new and emerging technology of e-books, which were just starting to enjoy broader market success (and dramatic success a few years later). The court found that, while Random House did in fact have the right to publish certain authors’ books in paper form (both hardcover and paperback), it did not have the second set of rights it thought it had – the right to publish those books in electronic form. (The defendant Rosetta Books was a second publisher, which DID expressly acquire the electronic publishing rights from the same authors who had sold the paper-publishing rights to Random House.) The moral of that story, as taught in copyright classes around the US, is that old agreements may not cover new uses, and that one ought not presume that the needed rights are in hand unless the actual text of a valid agreement actually says so.
A personal vignette: After the Tasini decision came down, many writers (myself included) received polite little mailings from publishers with whom we had worked. In effect, these said (in so many words), “We love you guys, we’re one big happy family, yada yada yada . . . . Would you mind signing this?” This was a rights transfer request for subsequent electronic use. (I signed it.)
I don’t know how the current comedy brouhaha will come out; and I’d guess that neither does anyone else. It’s just too early to pull out the ol’ crystal ball. But I do think we’re in a place where new uses imply the need for new licenses (or perhaps I should call them “unexpected” licenses) under copyright. And, although we can poke fun at the discomfort it is causing, in the end, it’s no laughing matter.