WEBVTT - Ariana Grande’s Concert Rules Push Copyright Limits

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you inside and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. Because this is

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<v Speaker 1>Ariana Grande is restricting photography rights at her concerts, Alicia

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<v Speaker 1>Keys and Dave Chappelle are requiring everyone in the audience

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<v Speaker 1>to put their phones inside locked neopreme sleeves, and Louis

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<v Speaker 1>c k is threatening to sue anyone in the audience

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<v Speaker 1>who retails his jokes. So what happened to fund freewheeling

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<v Speaker 1>enjoyment at events you pay a high ticket price for

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<v Speaker 1>joining me to answer that question? Is intellectual property? Attorney

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<v Speaker 1>Terence Ross, a partner at Caton Uchen. So, Terry, why

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<v Speaker 1>are so many performers trying to control what the audience

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<v Speaker 1>does their performances? Well, Jo, it's a combination two things. One,

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<v Speaker 1>a lot of the performers, who are also celebrity performers

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<v Speaker 1>are just fed up with the paparazzi, so's that's part

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<v Speaker 1>of a biggeration. The second part of it is that

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<v Speaker 1>as part of the total packaging of performers that goes

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<v Speaker 1>on nowadays, and entertainers they want to present an image

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<v Speaker 1>that is carefully choreographed, and they can't do that without

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<v Speaker 1>controlling the photographers at the performance venues. So the lines

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<v Speaker 1>are blurry. Here explain just briefly the concepts of copyright

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<v Speaker 1>law and right of publicity that are involved here. Sure,

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<v Speaker 1>so the copyright is owned by the person taking this

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<v Speaker 1>photograph in most instances, however, you cannot use that photograph

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<v Speaker 1>in any way you please. If you attempt to use

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<v Speaker 1>it in a commercial manner, in other words, using the

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<v Speaker 1>celebrities image to make a profit for yourself. That would

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<v Speaker 1>violate state laws banning people from taking advantage of other

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<v Speaker 1>people's images for marcial gain. And so there's this interplay

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<v Speaker 1>between the copyright laws and the state laws on right

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<v Speaker 1>of publicity. So let's talk about a few of the restrictions.

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<v Speaker 1>Ariana Grande is requiring photo journalists to sign over the

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<v Speaker 1>copyright to all photos to her touring company, and they

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<v Speaker 1>can only use one photo approved by her in one

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<v Speaker 1>news item about the performance. That seems really onerous and restrictive.

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<v Speaker 1>Is it enforceable? It may well be. It depends on

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<v Speaker 1>how it's drafted up, and the problem I think with

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<v Speaker 1>her individual contract based on descriptions of it I haven't

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<v Speaker 1>actually read it, is that she may have gone about

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<v Speaker 1>it in the wrong way. But as a theoretical matter,

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<v Speaker 1>it is possible for her to set up a contract

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<v Speaker 1>with photographs such that as a condition of getting access

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<v Speaker 1>to her performances and being allowed to take photographs, that

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<v Speaker 1>they surrender any copyrights in it. This would be a

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<v Speaker 1>dramatic change from the norm, though I have to emphasize this.

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<v Speaker 1>This attempt to control photography at concerts has been going

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<v Speaker 1>on for a long time. Lady Gaga back as early

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<v Speaker 1>as two thousand eleven, was attempting to do this, but

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<v Speaker 1>this is taking it to a new level and actually

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<v Speaker 1>taking away ownership of the copyright from these photographers at

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<v Speaker 1>her Ariana Grande concerts. Louis c K, who recently resumed

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<v Speaker 1>touring after a nine month break following public admission of

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<v Speaker 1>past sexual misconduct, got some bad press over some controversial jokes,

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<v Speaker 1>so the audience going to his concert's got a notice

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<v Speaker 1>threatening to soothe them if they shared his jokes in

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<v Speaker 1>whole or in part in any form, media or technology

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<v Speaker 1>without written consent that's not funny. Is that even legal?

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<v Speaker 1>I think he's going to have a lot of trouble

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<v Speaker 1>in forcing that across the board. Does he have a

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<v Speaker 1>copyright in his jokes? Of course he does, at least

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<v Speaker 1>in the written form. However, someone comes out of his

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<v Speaker 1>concert and says to friend, did you hear the one about?

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<v Speaker 1>And then repeats the joke. Arguably that is not a

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<v Speaker 1>copyright violation. The other problem here is that most jokes

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<v Speaker 1>that are so short, you run into problems with the

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<v Speaker 1>fair use defense. It may be fair use to criticize

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<v Speaker 1>his approach to comedy, may be fair used to approach

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<v Speaker 1>the performance itself or his political views as reflected in

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<v Speaker 1>his jokes. By retelling the jokes in those instances, he's

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<v Speaker 1>going to have a lot of trouble trying to stop

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<v Speaker 1>people from repeating his jokes. I would think also, you know,

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<v Speaker 1>for Pablissay, you'd want them to be talking about your

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<v Speaker 1>show and some of the jokes that it just seems

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<v Speaker 1>very odd. Now there's a startup called Yonder that makes

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<v Speaker 1>these neoprene sleeve that are lockable, and Dave Chappelle and

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<v Speaker 1>Alicia Keys are just two of the performers that require

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<v Speaker 1>the audience members to put their phones inside those sleeves.

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<v Speaker 1>I suppose that that is legal. It is it will

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<v Speaker 1>be a condition of admission to the concert venue that

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<v Speaker 1>you can fly with this, and um, the ticket will

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<v Speaker 1>probably say on its back that if you don't comply,

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<v Speaker 1>they reserve the right to deny you admission. So we see.

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<v Speaker 1>You know, performers get upset when on YouTube they're a

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<v Speaker 1>little excerpts from their concerts. But recently a photographer sued

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<v Speaker 1>Ariana Grande for posting his picture of her to her

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<v Speaker 1>Instagram followers. People post photos all the time in social media.

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<v Speaker 1>Are we getting to the point where we're going to

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<v Speaker 1>be suited over it? It sure seems that way. There

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<v Speaker 1>was an episode a couple of summers ago where a

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<v Speaker 1>man walking down the street in the Hampton's happened to

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<v Speaker 1>catch a famous basketball player who was a free agent

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<v Speaker 1>at the time talking to Tom Brady and some representatives

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<v Speaker 1>from the Boston Celtics, and he posted that, which resulted

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<v Speaker 1>in wide stress spread copying of his social media by

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<v Speaker 1>the news outlets that resulted in the litigation. It's almost

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<v Speaker 1>out of control the extent to which we are trying

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<v Speaker 1>to lamp down on these postings, which for the most part,

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<v Speaker 1>are not being made in order to earn money. They're

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<v Speaker 1>simply being done as part of the fun and the

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<v Speaker 1>spirit of it. And as you said, this is what

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<v Speaker 1>concert goers want. They want to show that they were

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<v Speaker 1>at the concert. I mean, why why clamp down on that? Though?

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<v Speaker 1>I have to say at some concerts, for example, I'll

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<v Speaker 1>mention Beyonce's you can barely see her because of all

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<v Speaker 1>the phones going up during the whole performance. So there's

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<v Speaker 1>some performers that want to cut that down as well,

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<v Speaker 1>which I think is probably for the best for those

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<v Speaker 1>of us not tall enough to see over the phones. Terry, Yeah,

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<v Speaker 1>I agree with you on that. I know that feeling.

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<v Speaker 1>So is there any performer that you think is handling

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<v Speaker 1>this correctly? Well? I think the approach Lady Gaga originally took,

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<v Speaker 1>which was to control the use without taking away the ownership,

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<v Speaker 1>seemed reasonable. It unfortunately has morphed over the years into

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<v Speaker 1>this attempt to exercise total control to the point of

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<v Speaker 1>taking ownership of the photographs, and I don't see how

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<v Speaker 1>that's productive for the celebrity. It may allow for control,

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<v Speaker 1>but you get so much pushback from news organizations because

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<v Speaker 1>many events are legitimate news and they should be allowed

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<v Speaker 1>to cover the news element of the event. All right,

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<v Speaker 1>thank so much. Terry is so interesting. That's Terence Ross,

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<v Speaker 1>partner at captn Uchen. Thanks for listening to the Bloomberg

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<v Speaker 1>Law Podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcasts.

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<v Speaker 1>I'm June Brosso. This is Bloomberg