Ariana Grande’s Concert Rules Push Copyright Limits

and on Bloomberg dot com slash podcast. Because this is Ariana Grande is restricting photography rights at her concerts, Alicia Keys and Dave Chappelle are requiring everyone in the audience to put their phones inside locked neopreme sleeves, and Louis c k is threatening to sue anyone in the audience who retails his jokes. So what happened to fund freewheeling enjoyment at events you pay a high ticket price for joining me to answer that question? Is intellectual property? Attorney

Terence Ross, a partner at Caton Uchen. So, Terry, why are so many performers trying to control what the audience does their performances? Well, Jo, it's a combination two things. One, a lot of the performers, who are also celebrity performers are just fed up with the paparazzi, so's that's part

of a biggeration. The second part of it is that as part of the total packaging of performers that goes on nowadays, and entertainers they want to present an image that is carefully choreographed, and they can't do that without controlling the photographers at the performance venues. So the lines are blurry. Here explain just briefly the concepts of copyright

law and right of publicity that are involved here. Sure, so the copyright is owned by the person taking this photograph in most instances, however, you cannot use that photograph in any way you please. If you attempt to use it in a commercial manner, in other words, using the celebrities image to make a profit for yourself. That would violate state laws banning people from taking advantage of other

people's images for marcial gain. And so there's this interplay between the copyright laws and the state laws on right of publicity. So let's talk about a few of the restrictions. Ariana Grande is requiring photo journalists to sign over the copyright to all photos to her touring company, and they can only use one photo approved by her in one news item about the performance. That seems really onerous and restrictive.

Is it enforceable? It may well be. It depends on how it's drafted up, and the problem I think with her individual contract based on descriptions of it I haven't actually read it, is that she may have gone about it in the wrong way. But as a theoretical matter, it is possible for her to set up a contract with photographs such that as a condition of getting access to her performances and being allowed to take photographs, that

they surrender any copyrights in it. This would be a dramatic change from the norm, though I have to emphasize this. This attempt to control photography at concerts has been going on for a long time. Lady Gaga back as early as two thousand eleven, was attempting to do this, but this is taking it to a new level and actually taking away ownership of the copyright from these photographers at

her Ariana Grande concerts. Louis c K, who recently resumed touring after a nine month break following public admission of past sexual misconduct, got some bad press over some controversial jokes, so the audience going to his concert's got a notice threatening to soothe them if they shared his jokes in whole or in part in any form, media or technology without written consent that's not funny. Is that even legal? I think he's going to have a lot of trouble

in forcing that across the board. Does he have a copyright in his jokes? Of course he does, at least in the written form. However, someone comes out of his concert and says to friend, did you hear the one about? And then repeats the joke. Arguably that is not a copyright violation. The other problem here is that most jokes that are so short, you run into problems with the

fair use defense. It may be fair use to criticize his approach to comedy, may be fair used to approach the performance itself or his political views as reflected in his jokes. By retelling the jokes in those instances, he's going to have a lot of trouble trying to stop people from repeating his jokes. I would think also, you know, for Pablissay, you'd want them to be talking about your show and some of the jokes that it just seems

very odd. Now there's a startup called Yonder that makes these neoprene sleeve that are lockable, and Dave Chappelle and Alicia Keys are just two of the performers that require the audience members to put their phones inside those sleeves. I suppose that that is legal. It is it will be a condition of admission to the concert venue that you can fly with this, and um, the ticket will probably say on its back that if you don't comply, they reserve the right to deny you admission. So we see.

You know, performers get upset when on YouTube they're a little excerpts from their concerts. But recently a photographer sued Ariana Grande for posting his picture of her to her Instagram followers. People post photos all the time in social media. Are we getting to the point where we're going to

be suited over it? It sure seems that way. There was an episode a couple of summers ago where a man walking down the street in the Hampton's happened to catch a famous basketball player who was a free agent at the time talking to Tom Brady and some representatives from the Boston Celtics, and he posted that, which resulted in wide stress spread copying of his social media by

the news outlets that resulted in the litigation. It's almost out of control the extent to which we are trying to lamp down on these postings, which for the most part, are not being made in order to earn money. They're simply being done as part of the fun and the spirit of it. And as you said, this is what concert goers want. They want to show that they were at the concert. I mean, why why clamp down on that? Though?

I have to say at some concerts, for example, I'll mention Beyonce's you can barely see her because of all the phones going up during the whole performance. So there's some performers that want to cut that down as well, which I think is probably for the best for those of us not tall enough to see over the phones. Terry, Yeah, I agree with you on that. I know that feeling. So is there any performer that you think is handling

this correctly? Well? I think the approach Lady Gaga originally took, which was to control the use without taking away the ownership, seemed reasonable. It unfortunately has morphed over the years into this attempt to exercise total control to the point of taking ownership of the photographs, and I don't see how that's productive for the celebrity. It may allow for control, but you get so much pushback from news organizations because many events are legitimate news and they should be allowed

to cover the news element of the event. All right, thank so much. Terry is so interesting. That's Terence Ross, partner at captn Uchen. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcasts. I'm June Brosso. This is Bloomberg