Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you inside and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. Because this is
Speaker 1: Ariana Grande is restricting photography rights at her concerts, Alicia
Speaker 1: Keys and Dave Chappelle are requiring everyone in the audience
Speaker 1: to put their phones inside locked neopreme sleeves, and Louis
Speaker 1: c k is threatening to sue anyone in the audience
Speaker 1: who retails his jokes. So what happened to fund freewheeling
Speaker 1: enjoyment at events you pay a high ticket price for
Speaker 1: joining me to answer that question? Is intellectual property? Attorney
Speaker 1: Terence Ross, a partner at Caton Uchen. So, Terry, why
Speaker 1: are so many performers trying to control what the audience
Speaker 1: does their performances? Well, Jo, it's a combination two things. One,
Speaker 1: a lot of the performers, who are also celebrity performers
Speaker 1: are just fed up with the paparazzi, so's that's part
Speaker 1: of a biggeration. The second part of it is that
Speaker 1: as part of the total packaging of performers that goes
Speaker 1: on nowadays, and entertainers they want to present an image
Speaker 1: that is carefully choreographed, and they can't do that without
Speaker 1: controlling the photographers at the performance venues. So the lines
Speaker 1: are blurry. Here explain just briefly the concepts of copyright
Speaker 1: law and right of publicity that are involved here. Sure,
Speaker 1: so the copyright is owned by the person taking this
Speaker 1: photograph in most instances, however, you cannot use that photograph
Speaker 1: in any way you please. If you attempt to use
Speaker 1: it in a commercial manner, in other words, using the
Speaker 1: celebrities image to make a profit for yourself. That would
Speaker 1: violate state laws banning people from taking advantage of other
Speaker 1: people's images for marcial gain. And so there's this interplay
Speaker 1: between the copyright laws and the state laws on right
Speaker 1: of publicity. So let's talk about a few of the restrictions.
Speaker 1: Ariana Grande is requiring photo journalists to sign over the
Speaker 1: copyright to all photos to her touring company, and they
Speaker 1: can only use one photo approved by her in one
Speaker 1: news item about the performance. That seems really onerous and restrictive.
Speaker 1: Is it enforceable? It may well be. It depends on
Speaker 1: how it's drafted up, and the problem I think with
Speaker 1: her individual contract based on descriptions of it I haven't
Speaker 1: actually read it, is that she may have gone about
Speaker 1: it in the wrong way. But as a theoretical matter,
Speaker 1: it is possible for her to set up a contract
Speaker 1: with photographs such that as a condition of getting access
Speaker 1: to her performances and being allowed to take photographs, that
Speaker 1: they surrender any copyrights in it. This would be a
Speaker 1: dramatic change from the norm, though I have to emphasize this.
Speaker 1: This attempt to control photography at concerts has been going
Speaker 1: on for a long time. Lady Gaga back as early
Speaker 1: as two thousand eleven, was attempting to do this, but
Speaker 1: this is taking it to a new level and actually
Speaker 1: taking away ownership of the copyright from these photographers at
Speaker 1: her Ariana Grande concerts. Louis c K, who recently resumed
Speaker 1: touring after a nine month break following public admission of
Speaker 1: past sexual misconduct, got some bad press over some controversial jokes,
Speaker 1: so the audience going to his concert's got a notice
Speaker 1: threatening to soothe them if they shared his jokes in
Speaker 1: whole or in part in any form, media or technology
Speaker 1: without written consent that's not funny. Is that even legal?
Speaker 1: I think he's going to have a lot of trouble
Speaker 1: in forcing that across the board. Does he have a
Speaker 1: copyright in his jokes? Of course he does, at least
Speaker 1: in the written form. However, someone comes out of his
Speaker 1: concert and says to friend, did you hear the one about?
Speaker 1: And then repeats the joke. Arguably that is not a
Speaker 1: copyright violation. The other problem here is that most jokes
Speaker 1: that are so short, you run into problems with the
Speaker 1: fair use defense. It may be fair use to criticize
Speaker 1: his approach to comedy, may be fair used to approach
Speaker 1: the performance itself or his political views as reflected in
Speaker 1: his jokes. By retelling the jokes in those instances, he's
Speaker 1: going to have a lot of trouble trying to stop
Speaker 1: people from repeating his jokes. I would think also, you know,
Speaker 1: for Pablissay, you'd want them to be talking about your
Speaker 1: show and some of the jokes that it just seems
Speaker 1: very odd. Now there's a startup called Yonder that makes
Speaker 1: these neoprene sleeve that are lockable, and Dave Chappelle and
Speaker 1: Alicia Keys are just two of the performers that require
Speaker 1: the audience members to put their phones inside those sleeves.
Speaker 1: I suppose that that is legal. It is it will
Speaker 1: be a condition of admission to the concert venue that
Speaker 1: you can fly with this, and um, the ticket will
Speaker 1: probably say on its back that if you don't comply,
Speaker 1: they reserve the right to deny you admission. So we see.
Speaker 1: You know, performers get upset when on YouTube they're a
Speaker 1: little excerpts from their concerts. But recently a photographer sued
Speaker 1: Ariana Grande for posting his picture of her to her
Speaker 1: Instagram followers. People post photos all the time in social media.
Speaker 1: Are we getting to the point where we're going to
Speaker 1: be suited over it? It sure seems that way. There
Speaker 1: was an episode a couple of summers ago where a
Speaker 1: man walking down the street in the Hampton's happened to
Speaker 1: catch a famous basketball player who was a free agent
Speaker 1: at the time talking to Tom Brady and some representatives
Speaker 1: from the Boston Celtics, and he posted that, which resulted
Speaker 1: in wide stress spread copying of his social media by
Speaker 1: the news outlets that resulted in the litigation. It's almost
Speaker 1: out of control the extent to which we are trying
Speaker 1: to lamp down on these postings, which for the most part,
Speaker 1: are not being made in order to earn money. They're
Speaker 1: simply being done as part of the fun and the
Speaker 1: spirit of it. And as you said, this is what
Speaker 1: concert goers want. They want to show that they were
Speaker 1: at the concert. I mean, why why clamp down on that? Though?
Speaker 1: I have to say at some concerts, for example, I'll
Speaker 1: mention Beyonce's you can barely see her because of all
Speaker 1: the phones going up during the whole performance. So there's
Speaker 1: some performers that want to cut that down as well,
Speaker 1: which I think is probably for the best for those
Speaker 1: of us not tall enough to see over the phones. Terry, Yeah,
Speaker 1: I agree with you on that. I know that feeling.
Speaker 1: So is there any performer that you think is handling
Speaker 1: this correctly? Well? I think the approach Lady Gaga originally took,
Speaker 1: which was to control the use without taking away the ownership,
Speaker 1: seemed reasonable. It unfortunately has morphed over the years into
Speaker 1: this attempt to exercise total control to the point of
Speaker 1: taking ownership of the photographs, and I don't see how
Speaker 1: that's productive for the celebrity. It may allow for control,
Speaker 1: but you get so much pushback from news organizations because
Speaker 1: many events are legitimate news and they should be allowed
Speaker 1: to cover the news element of the event. All right,
Speaker 1: thank so much. Terry is so interesting. That's Terence Ross,
Speaker 1: partner at captn Uchen. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcasts.
Speaker 1: I'm June Brosso. This is Bloomberg