Where do broken rights go? Will they find their way home? And will I have to pay someone for this turn of paraphrase?
One of the guiding principles of this here Substack, Piffany, reminds me to remind us that history doesn’t so much repeat itself as much as we forget to learn from history, which leads us to get stuck in circular arguments and narrow narratives. If we want to think outside of the box, then we must consider the box itself. Sometimes we just need a bald kid to tell us there is no box. Plenty of other times, we need someone in our lives (for me, ‘twas Mr. McKinley, my high-school freshman English teacher) to learn us that “context determines meaning.”
So my friends in the comedy community have found themselves in the middle of a scrape, as several of them (dozens, even) suddenly discovered over Thanksgiving that their catalogs of stand-up albums had vanished from Spotify, the world’s dominant streaming platform for on-demand audio. Why? Because they’d aligned themselves with Spoken Giants, a collaborative launched to seek publishing royalties for them, and which asked Spotify to pay the comedians accordingly. Spotify’s response on the night before Thanksgiving? Removing most (but suspiciously not all) of the Spoken Giants clients from the platform until they settle the matter.
When comedians found out and began sounding alarms on social media, that alerted me, and then the rest of the mainstream media followed suit.
But we all kinda sorta missed the boat, or failed to see that this ship had sailed before.
Let’s take a step back. All the way back. The idea of royalties stems from, you guessed it, a time when we all just agreed to have kings and queens who owned pretty much everything, and then bestowed rights unto us peasants. OK. That’s a gross oversimplification, but neither you nor I was around then, unless you’re Highlander and there can be only one so I only want to hear one complaint about it. Actual point being, the British royals owned the mines, and we could mine for gold or silver or what-have-you if we paid a fee to the royalty. That concept carried over into contemporary democracies, but also with respect to invented rights — everything from actual inventions (and patents on them) to works of literary and musical art that could be reproduced and distributed to the masses.
When they wrote the U.S. copyright laws for publishing rights versus musical performance rights, the government didn’t imagine anything existing past the original framework for distribution. For music and spoken word, that meant broadcast radio (which has federal regulation under the FCC) and record albums.
So whenever you wonder why you can’t find a certain Saturday Night Live comedy sketch or TV show online, there’s more than a good chance it’s because that video you’re looking for contained copyrighted music, and the makers of the TV show don’t want to pay additional royalties, so they stopped short of sharing it online.
We didn’t imagine an on-demand world of streaming content, so we didn’t plan for it nor have we legislated for it.
Which allowed content kings to anoint themselves kings and queens! If you want to talk about how the Internet killed newspapers, or even journalism in general, just look to the aggregating agitators. They taught us that news was free, didn’t they? Never you mind that you were paying someone for it — your Internet Service Provider directly, or the aggregation site indirectly by hooking onto their clickbait — just no longer the actual hunters, gatherers and providers of your news. Instead, you had the likes of Jonah Peretti and Arianna Huffington convincing aspiring journalists in the mid-00s that their contributions would receive massive payments in the form of “exposure,” and hey, just being on The Huffington Post as a contributor is a gift, so why don’t you cherish that and tell your landlord what great cred you have?! Then came YouTube and Twitter and the likes. They’re generating the wealth on the backbone of our contributions, but they’re not the government, so don’t try to argue with them that they’re censoring our free speech, because look, I could still type whatever I want right here, couldn’t I? Same goes for the most powerful players in online broadcasting today, from Apple and Amazon Music to YouTube to Pandora and SiriusXM and Spotify, too.
Lars Ulrich sounded the alarm early. Remember Metallica, et al. v. Napster, Inc.?
That 2000 lawsuit in federal court resulted in an injunction the following year in favor of Metallica, with Napster forced to remove the band’s songs — and that prompted many other artists to ask the peer-to-peer MP3 file-sharing company to remove their songs, too. Eventually Napster filed for Chapter 7 bankruptcy.
Fast forward to 2013.
That’s when David Lowery, the frontman for bands Cracker and Camper Van Beethoven, began speaking out against exploitation of musicians by the new breed of streaming music broadcasters. Thom Yorke, Radiohead’s frontman, took some of his songs off of Spotify back then as a way to support the newer, smaller musical artists who were getting hurt even more from not getting paid by these platforms. A New York Times article from that period noted that Lowery’s own songwriting royalties from Camper Van Beethoven’s debut album had dropped from $1,147 in 2002 to $440 in 2012.
But nothing really changed for a couple of years, until an upstart record label complained loudly about Spotify. How did Spotify respond to Victory Records in October 2015? By removing thousands of the punk/metal label’s songs, claiming it didn’t know how to resolve the royalty issue. Sound familiar? The Victory Records catalog eventually returned to the platform in a few weeks.
Not until Lowery actually sued Spotify in December 2015 did anyone really take notice. His federal lawsuit alleged the platform hadn’t paid to secure the “mechanical rights” to broadcast his songs and those of other bands. It became a class-action lawsuit thanks to just how many bands and musicians were involved, with Spotify eventually settling for $43.4 million in May 2017.
Spotify was supposed to get better at working with artists over royalty payments, although this lawsuit focused on the right to reproduce the work. Musicians and comedians alike have received payments from streaming platforms, even if it’s only a pittance of the profits these companies are claiming for themselves. What about the literary or publishing rights?
That’s where the musicians have been getting paid, while the comedians and spoken-word artists have not.
And that’s where Spoken Giants and Word Collections come in.
Jeff Price, a former indie record label president who subsequently formed two companies (TuneCore, Audium) to represent artists in their move to digital, launched Word Collections in July 2020 in an attempt to likewise help comedians and spoken-word performers. Earlier this month, Word Collections announced it had raised $3.5 million toward capital expansion of the company from investors, among them Word Collections clients Thomas Dolby and…checks notes…Metallica.
In a Medium post last week, Price outlined the differences in copyright law in regards to the spoken word. “For music, the government forces the songwriter to give a license to Spotify even if they don’t want to. In addition, the government sets the royalty rate. For spoken word comedy, the comedian does not have to give a license if they don’t want. In addition, the comedian can negotiate any royalty rate they want and the government has no say.”
He cited the applicable federal codes here and here.
Price elaborated with me over the phone this weekend. His clients with Word Collections include Margaret Cho, Andrew Dice Clay, David Cross, Bill Engvall, as well as the estates of Muhammad Ali, Dick Gregory, George Carlin, Bill Hicks and Robin Williams. How have they been largely spared in this Spotify spat? After all, aren’t they arguing for the same payouts for the same reasons as Spoken Giants.
Yes, but they aren’t literally represented by an 800-pound gorilla in the room.
Two of the three co-founders of Spoken Giants, as well as that company’s CEO, come from 800 Pound Gorilla Records. Ryan Bitzer and Damion Greiman formed their record label in Nashville in 2016, then in February 2019, joined forces with Jim King, a former BMI executive — that’s BMI as in the music-rights organization, not body mass index. When you wonder why that escalated quickly? That’s why. Their positions within the industry exacerbated the dynamics of the debate.
Because when you wonder, well, who’s on the hook for paying comedians or any artist: “That is the $100 billion dollar question,” Price told me.
Especially since some streamers went out of their way to advertise how many streams comedians were getting. See: Jim Gaffigan, July 2020, holding a framed gift from Pandora. The frame was the gift. Of course Pandora didn’t pay him a billion for a billion streams. Far from it!
Price crunched the numbers on Dolly Parton’s “I Will Always Love You,” and figured if the Whitney Houston cover of Parton’s song streamed a billion times, and Parton got paid .0012 per stream… “Dolly’s getting her $1.2 million. Why not Jim?”
Price said he just wants online broadcasters to get the proper licenses and pay out the proper royalties, and that he has been in talks with not just Spotify, but also Amazon, Apple, YouTube, Comedy Dynamics, Comedy Central and others about reaching arrangements or agreements. “Just because Robin Williams said, ‘Reality, what a concept,’ instead of singing it, doesn’t mean he doesn’t have a copyright,” Price said.
Some of the platforms acknowledge in their SEC filings that they’re liable for transmitting recordings without the licensing, Price alleged: “They’re literally aware.” He contended they’ve simply avoided the issue because it’s a logistical hassle as much as a financial one, and worried more about their market share versus their competitors in the online marketplace. “Shoot first, aim second, and we’ll deal with the consequences later,” he said.
Now is later.
Lowery, for his part, hasn’t lost track of the bigger picture. Both through his collaborative blog, The Trichordist, as well as his Twitter feed, the singer/songwriter has kept banging the drum against exploitation by streaming platforms. He wrote Sunday: “Corporations cheered on the dismantling of musicians rights to sell their works at a fair price as good for consumers. But why stop there? Next comedians. Eventually they come for your job. You were warned.”
That Lewis Black tweet Lowery was quoting?
Black, in his own bid to do what Yorke had done in 2013 on behalf of musicians, had demanded Spotify remove his comedy catalog in solidarity with the less-famous comedians. As Lewis told TIME magazine on Friday:
“Many comics have recently been taken off Spotify for no reason at all and it truly hurts their exposure and income. Since I haven’t been taken off, I would like to be, as it is wrong that I am on the platform and so many aren’t. I need neither the money nor the exposure, but please put all of the comedians back on your platform and let’s sit down and find a way to pay us what we are owed for the words that make you laugh. Yes, a joke is intellectual property.”
It’s particularly damning since Black is a Spoken Giants client!
King, Spoken Giants CEO, celebrated Black’s move in an email missive to clients on Friday night. “A point of clarification – Spotify’s media statement sidesteps the matter at hand in suggesting that this is an issue between Spoken Giants and the labels/distributors. That is incorrect. Just like in the music industry, labels and distributors only grant licenses for your sound recordings to be used. Labels and distributors cannot grant licenses for your underlying written content. YOU own the copyrights to your writing and only those you empower may grant those licenses and negotiate royalties for your written work. In music, that is the role of BMI and ASCAP, in comedy that is our role as your representative – to work on your behalf to obtain the proper value for your writing.”
As of this writing, Spotify has left most of Black’s catalog untouched.
And to answer my own question in the subhed? Credit Frank N. Wildhorn for the original lyrics to the Whitney Houston #1 hit of 1988, “Where Do Broken Hearts Go/?”
From The Comic's Comic 
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