1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you inside and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

5
00:00:16,280 --> 00:00:27,200
Speaker 1: and on Bloomberg dot com slash podcast. Because this is

6
00:00:28,680 --> 00:00:33,040
Speaker 1: Ariana Grande is restricting photography rights at her concerts, Alicia

7
00:00:33,120 --> 00:00:36,120
Speaker 1: Keys and Dave Chappelle are requiring everyone in the audience

8
00:00:36,159 --> 00:00:39,840
Speaker 1: to put their phones inside locked neopreme sleeves, and Louis

9
00:00:39,880 --> 00:00:42,239
Speaker 1: c k is threatening to sue anyone in the audience

10
00:00:42,240 --> 00:00:46,040
Speaker 1: who retails his jokes. So what happened to fund freewheeling

11
00:00:46,120 --> 00:00:48,559
Speaker 1: enjoyment at events you pay a high ticket price for

12
00:00:49,080 --> 00:00:52,120
Speaker 1: joining me to answer that question? Is intellectual property? Attorney

13
00:00:52,240 --> 00:00:56,000
Speaker 1: Terence Ross, a partner at Caton Uchen. So, Terry, why

14
00:00:56,040 --> 00:00:59,400
Speaker 1: are so many performers trying to control what the audience

15
00:00:59,520 --> 00:01:02,959
Speaker 1: does their performances? Well, Jo, it's a combination two things. One,

16
00:01:03,000 --> 00:01:05,959
Speaker 1: a lot of the performers, who are also celebrity performers

17
00:01:06,200 --> 00:01:09,720
Speaker 1: are just fed up with the paparazzi, so's that's part

18
00:01:09,760 --> 00:01:11,520
Speaker 1: of a biggeration. The second part of it is that

19
00:01:11,880 --> 00:01:15,080
Speaker 1: as part of the total packaging of performers that goes

20
00:01:15,080 --> 00:01:19,040
Speaker 1: on nowadays, and entertainers they want to present an image

21
00:01:19,040 --> 00:01:22,959
Speaker 1: that is carefully choreographed, and they can't do that without

22
00:01:23,040 --> 00:01:27,559
Speaker 1: controlling the photographers at the performance venues. So the lines

23
00:01:27,600 --> 00:01:31,920
Speaker 1: are blurry. Here explain just briefly the concepts of copyright

24
00:01:32,000 --> 00:01:35,440
Speaker 1: law and right of publicity that are involved here. Sure,

25
00:01:35,520 --> 00:01:39,200
Speaker 1: so the copyright is owned by the person taking this

26
00:01:39,319 --> 00:01:44,119
Speaker 1: photograph in most instances, however, you cannot use that photograph

27
00:01:44,400 --> 00:01:46,960
Speaker 1: in any way you please. If you attempt to use

28
00:01:47,000 --> 00:01:50,040
Speaker 1: it in a commercial manner, in other words, using the

29
00:01:50,120 --> 00:01:54,280
Speaker 1: celebrities image to make a profit for yourself. That would

30
00:01:54,360 --> 00:01:58,520
Speaker 1: violate state laws banning people from taking advantage of other

31
00:01:58,560 --> 00:02:02,480
Speaker 1: people's images for marcial gain. And so there's this interplay

32
00:02:02,560 --> 00:02:07,160
Speaker 1: between the copyright laws and the state laws on right

33
00:02:07,200 --> 00:02:11,080
Speaker 1: of publicity. So let's talk about a few of the restrictions.

34
00:02:11,120 --> 00:02:14,960
Speaker 1: Ariana Grande is requiring photo journalists to sign over the

35
00:02:15,000 --> 00:02:18,200
Speaker 1: copyright to all photos to her touring company, and they

36
00:02:18,200 --> 00:02:21,520
Speaker 1: can only use one photo approved by her in one

37
00:02:21,520 --> 00:02:26,919
Speaker 1: news item about the performance. That seems really onerous and restrictive.

38
00:02:27,400 --> 00:02:31,440
Speaker 1: Is it enforceable? It may well be. It depends on

39
00:02:31,520 --> 00:02:34,160
Speaker 1: how it's drafted up, and the problem I think with

40
00:02:34,440 --> 00:02:37,920
Speaker 1: her individual contract based on descriptions of it I haven't

41
00:02:37,919 --> 00:02:40,600
Speaker 1: actually read it, is that she may have gone about

42
00:02:40,600 --> 00:02:43,120
Speaker 1: it in the wrong way. But as a theoretical matter,

43
00:02:43,480 --> 00:02:47,160
Speaker 1: it is possible for her to set up a contract

44
00:02:47,200 --> 00:02:50,320
Speaker 1: with photographs such that as a condition of getting access

45
00:02:50,400 --> 00:02:53,480
Speaker 1: to her performances and being allowed to take photographs, that

46
00:02:53,520 --> 00:02:56,560
Speaker 1: they surrender any copyrights in it. This would be a

47
00:02:56,639 --> 00:02:59,400
Speaker 1: dramatic change from the norm, though I have to emphasize this.

48
00:02:59,800 --> 00:03:03,400
Speaker 1: This attempt to control photography at concerts has been going

49
00:03:03,400 --> 00:03:06,320
Speaker 1: on for a long time. Lady Gaga back as early

50
00:03:06,400 --> 00:03:09,320
Speaker 1: as two thousand eleven, was attempting to do this, but

51
00:03:09,400 --> 00:03:12,280
Speaker 1: this is taking it to a new level and actually

52
00:03:12,320 --> 00:03:16,280
Speaker 1: taking away ownership of the copyright from these photographers at

53
00:03:16,320 --> 00:03:21,160
Speaker 1: her Ariana Grande concerts. Louis c K, who recently resumed

54
00:03:21,200 --> 00:03:24,800
Speaker 1: touring after a nine month break following public admission of

55
00:03:24,880 --> 00:03:29,840
Speaker 1: past sexual misconduct, got some bad press over some controversial jokes,

56
00:03:29,840 --> 00:03:32,400
Speaker 1: so the audience going to his concert's got a notice

57
00:03:32,720 --> 00:03:35,480
Speaker 1: threatening to soothe them if they shared his jokes in

58
00:03:35,640 --> 00:03:39,560
Speaker 1: whole or in part in any form, media or technology

59
00:03:39,680 --> 00:03:44,360
Speaker 1: without written consent that's not funny. Is that even legal?

60
00:03:45,320 --> 00:03:46,880
Speaker 1: I think he's going to have a lot of trouble

61
00:03:46,920 --> 00:03:49,400
Speaker 1: in forcing that across the board. Does he have a

62
00:03:49,440 --> 00:03:52,200
Speaker 1: copyright in his jokes? Of course he does, at least

63
00:03:52,200 --> 00:03:55,000
Speaker 1: in the written form. However, someone comes out of his

64
00:03:55,120 --> 00:03:58,400
Speaker 1: concert and says to friend, did you hear the one about?

65
00:03:58,400 --> 00:04:02,280
Speaker 1: And then repeats the joke. Arguably that is not a

66
00:04:02,280 --> 00:04:06,440
Speaker 1: copyright violation. The other problem here is that most jokes

67
00:04:06,520 --> 00:04:09,680
Speaker 1: that are so short, you run into problems with the

68
00:04:09,720 --> 00:04:14,080
Speaker 1: fair use defense. It may be fair use to criticize

69
00:04:14,640 --> 00:04:18,240
Speaker 1: his approach to comedy, may be fair used to approach

70
00:04:18,440 --> 00:04:22,599
Speaker 1: the performance itself or his political views as reflected in

71
00:04:22,640 --> 00:04:26,080
Speaker 1: his jokes. By retelling the jokes in those instances, he's

72
00:04:26,120 --> 00:04:28,360
Speaker 1: going to have a lot of trouble trying to stop

73
00:04:28,400 --> 00:04:31,919
Speaker 1: people from repeating his jokes. I would think also, you know,

74
00:04:31,960 --> 00:04:34,280
Speaker 1: for Pablissay, you'd want them to be talking about your

75
00:04:34,320 --> 00:04:36,520
Speaker 1: show and some of the jokes that it just seems

76
00:04:36,680 --> 00:04:40,520
Speaker 1: very odd. Now there's a startup called Yonder that makes

77
00:04:40,560 --> 00:04:45,120
Speaker 1: these neoprene sleeve that are lockable, and Dave Chappelle and

78
00:04:45,160 --> 00:04:48,280
Speaker 1: Alicia Keys are just two of the performers that require

79
00:04:48,360 --> 00:04:52,640
Speaker 1: the audience members to put their phones inside those sleeves.

80
00:04:52,680 --> 00:04:55,320
Speaker 1: I suppose that that is legal. It is it will

81
00:04:55,360 --> 00:04:59,560
Speaker 1: be a condition of admission to the concert venue that

82
00:04:59,640 --> 00:05:02,440
Speaker 1: you can fly with this, and um, the ticket will

83
00:05:02,440 --> 00:05:04,560
Speaker 1: probably say on its back that if you don't comply,

84
00:05:05,040 --> 00:05:08,840
Speaker 1: they reserve the right to deny you admission. So we see.

85
00:05:08,920 --> 00:05:12,039
Speaker 1: You know, performers get upset when on YouTube they're a

86
00:05:12,040 --> 00:05:17,200
Speaker 1: little excerpts from their concerts. But recently a photographer sued

87
00:05:17,520 --> 00:05:21,479
Speaker 1: Ariana Grande for posting his picture of her to her

88
00:05:21,600 --> 00:05:26,560
Speaker 1: Instagram followers. People post photos all the time in social media.

89
00:05:26,600 --> 00:05:28,240
Speaker 1: Are we getting to the point where we're going to

90
00:05:28,320 --> 00:05:31,560
Speaker 1: be suited over it? It sure seems that way. There

91
00:05:31,640 --> 00:05:34,680
Speaker 1: was an episode a couple of summers ago where a

92
00:05:34,760 --> 00:05:37,159
Speaker 1: man walking down the street in the Hampton's happened to

93
00:05:37,880 --> 00:05:40,600
Speaker 1: catch a famous basketball player who was a free agent

94
00:05:40,640 --> 00:05:45,200
Speaker 1: at the time talking to Tom Brady and some representatives

95
00:05:45,240 --> 00:05:49,839
Speaker 1: from the Boston Celtics, and he posted that, which resulted

96
00:05:49,960 --> 00:05:53,000
Speaker 1: in wide stress spread copying of his social media by

97
00:05:53,000 --> 00:05:56,640
Speaker 1: the news outlets that resulted in the litigation. It's almost

98
00:05:56,680 --> 00:05:59,480
Speaker 1: out of control the extent to which we are trying

99
00:05:59,520 --> 00:06:04,760
Speaker 1: to lamp down on these postings, which for the most part,

100
00:06:04,839 --> 00:06:08,240
Speaker 1: are not being made in order to earn money. They're

101
00:06:08,240 --> 00:06:10,480
Speaker 1: simply being done as part of the fun and the

102
00:06:10,520 --> 00:06:12,480
Speaker 1: spirit of it. And as you said, this is what

103
00:06:12,600 --> 00:06:14,720
Speaker 1: concert goers want. They want to show that they were

104
00:06:14,760 --> 00:06:18,960
Speaker 1: at the concert. I mean, why why clamp down on that? Though?

105
00:06:19,000 --> 00:06:21,840
Speaker 1: I have to say at some concerts, for example, I'll

106
00:06:21,839 --> 00:06:25,320
Speaker 1: mention Beyonce's you can barely see her because of all

107
00:06:25,480 --> 00:06:28,680
Speaker 1: the phones going up during the whole performance. So there's

108
00:06:28,720 --> 00:06:31,960
Speaker 1: some performers that want to cut that down as well,

109
00:06:32,040 --> 00:06:35,159
Speaker 1: which I think is probably for the best for those

110
00:06:35,160 --> 00:06:38,479
Speaker 1: of us not tall enough to see over the phones. Terry, Yeah,

111
00:06:38,520 --> 00:06:40,200
Speaker 1: I agree with you on that. I know that feeling.

112
00:06:40,520 --> 00:06:43,200
Speaker 1: So is there any performer that you think is handling

113
00:06:43,240 --> 00:06:47,719
Speaker 1: this correctly? Well? I think the approach Lady Gaga originally took,

114
00:06:47,960 --> 00:06:52,720
Speaker 1: which was to control the use without taking away the ownership,

115
00:06:53,160 --> 00:06:58,360
Speaker 1: seemed reasonable. It unfortunately has morphed over the years into

116
00:06:58,400 --> 00:07:01,240
Speaker 1: this attempt to exercise total control to the point of

117
00:07:01,320 --> 00:07:04,599
Speaker 1: taking ownership of the photographs, and I don't see how

118
00:07:04,640 --> 00:07:09,080
Speaker 1: that's productive for the celebrity. It may allow for control,

119
00:07:09,160 --> 00:07:13,280
Speaker 1: but you get so much pushback from news organizations because

120
00:07:13,440 --> 00:07:17,000
Speaker 1: many events are legitimate news and they should be allowed

121
00:07:17,040 --> 00:07:20,640
Speaker 1: to cover the news element of the event. All right,

122
00:07:20,720 --> 00:07:23,080
Speaker 1: thank so much. Terry is so interesting. That's Terence Ross,

123
00:07:23,280 --> 00:07:29,040
Speaker 1: partner at captn Uchen. Thanks for listening to the Bloomberg

124
00:07:29,120 --> 00:07:32,160
Speaker 1: Law Podcast. You can subscribe and listen to the show

125
00:07:32,240 --> 00:07:36,960
Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcasts.

126
00:07:37,320 --> 00:07:40,040
Speaker 1: I'm June Brosso. This is Bloomberg