SiriusXM Pushes Comics to Waive Royalties Amid Legal Battle – Digital Music News
Photo Credit: Bruno Emmanuelle
Digital Music News just recently received word of this latest twist in the long-running – and much-publicized – royalties battle between comedians and SiriusXM-owned Pandora. Regarding the multifaceted situation’s background, Spotify in late 2021 abruptly removed a number of comedy albums from its service, including works from John Mulaney, Kevin Hart, and even Joe Rogan.
Shortly thereafter, it came to light that Spoken Giants (which bills itself as “the first global rights administration company for the owners and creators of Spoken Word copyrights”) had been engaging in licensing discussions with the Stockholm-based platform.
Also in December, an organization called Word Collections, which says that it focuses “on getting comedians and other spoken word performers paid for the use of their literary works,” announced the completion of a $3.5 million funding round. And upon revealing the multimillion-dollar raise, Word Collections made clear its belief that comics would “be paid for past and future streams and broadcasts of literary works on Spotify” and other platforms “for the first time.”
These developments set the stage for a wider confrontation concerning payments for comedians’ underlying compositions – not recordings themselves – and Pandora in February and March was named in copyright lawsuits from Bill Engvall, Nick Di Paolo, Andrew Dice Clay, and several others.
May saw Pandora fire back with an antitrust-centered countersuit, accusing the counter-defendants of price fixing, tying, attempted monopolization and monopolization, and conspiracy to monopolize, all in violation of the Sherman Antitrust Act.
DMN was forwarded a letter signed by longtime SiriusXM EVP and general counsel Patrick Donnelly; the message is presumably addressed to one of the comedians whose works the company is looking to license without facing composition-related liability down the line, but the recipient’s name has been redacted. Additionally, the details of the pre-letter correspondence are unclear.
However, the document groups together “the Recordings and related materials” as “performer materials” and calls on the comedian at hand to acknowledge that SiriusXM “has in the past and shall continue in the future to integrate any rights to all underlying comedy routines, literary or dramatic works…within the rights to the Recordings such that those rights are included in the Statutory Licenses or any direct licenses.”
This letter agreement (this “Agreement”) memorializes the agreement between Sirius XM Radio Inc. (and its subsidiaries and affiliates, including Pandora Media LLC, and their respective services) (“Sirius XM”) and you (“Performer“) in connection with Sirius XM’s use of sound recordings featuring you (the “Recordings“).
Performer acknowledges that the Recordings and related materials (the “Performer Materials“) have been made available to Sirius XM with the intent and desire that Sirius XM use the Performer Materials in connection with its various services (the “Sirius XM Services“), including playing such Recordings and otherwise using the Performer Materials on the Sirius XM Services. The Sirius XM Services operate, in part, pursuant to the statutory licenses at 17 U.S.C. § § 112(e) and 114(f) (collectively, the “Statutory Licenses“). Performer acknowledges that this Agreement, and the parties’ prior agreements memorialized in this Agreement, is a voluntary license that clarifies and, to the extent necessary, supplements the terms of the Statutory Licenses and any applicable direct licenses with the relevant record companies, distributors, aggregators, and/or other entities authorized to license the Performer Materials.
Performer further acknowledges and agrees that it has in the past and shall continue in the future to integrate any rights to all underlying comedy routines, literary or dramatic works, works of performing art, or other material embodied in the Performer Materials, within the rights to the Recordings such that those rights are included in the Statutory Licenses or any direct licenses for the Recordings to the extent necessary for Sirius XM to copy, perform, transmit, promote, and otherwise use the Performer Materials in connection with the Sirius XM Services. Performer acknowledges, agrees, represents, and warrants that he has in the past and shall continue in the future to pass along these rights to Sirius XM, either directly or through any applicable record company, distributor, aggregator, and/or other entity licensing the Recordings to Sirius XM, at no additional cost or fee to Sirius XM.
Performer agrees that the terms of this Agreement are a material inducement for Sirius XM to use the Performer Materials in connection with the Sirius XM Services, and that Sirius XM’s agreement to use the Performer Materials, in its sole discretion, provides significant and adequate consideration to Performer for those terms. Subject to Performer’s execution of and performance under this Agreement and the execution of any applicable agreement with a record company, distributor, aggregator, and/or other entity authorized to license the Recordings, Sirius XM shall accept the Performer Materials for use in connection with the Sirius XM Services, but Sirius XM shall not be obligated to use such Materials.
Performer represents and warrants that he has the power and authority to enter into this Agreement, comply with all of its terms, grant all rights provided by it, and to perform all of its obligations hereunder. Performer further represents and warrants that except with respect to amounts payable by Sirius XM pursuant to the Statutory Licenses or any direct sound recording licenses, Sirius XM will not be required to make any payments of any nature to Performer or any third party in connection with Sirius XM’s use of the Performer Materials on the Sirius XM Services.
If Performer agrees with the foregoing, please execute this Agreement in the space provided below.