TORONTO -- Fans, lawyers and entertainment industry veterans are weighing in whether comedians should be legally able to make fans sign a contract not to talk about their jokes or performances -- under threat of a US$1M fine.
That was the stipulation from āSaturday Night Liveā comedian Pete Davidson, who recently asked attendees at his Nov. 27 comedy show to sign a non-disclosure agreement (NDA) that included the threat of a US$1-million fine, plus legal and attorney fees, if they violate any of its terms.
His request went viral after attendee Stacy Young, who went to the show at Sydney Goldstein Theater in San Francisco, .
By signing the NDA, attendees agreed:
- Not to āgive any interviews, opinions or critiques about [the show] in any form including blogs, Twitter, Facebook, Instagram or any other social networking;"
- To give cell phone numbers, email addresses, and even Instagram and Twitter handles;
- And put their cell phone into secure pouches to prevent them from recording the show.
The NDA also stated people who wouldnāt sign could get a full refund. In her post, Young agreed with locking up her phone, but nevertheless suggested, "this is a bit ridiculous and over the top."
NDAS SIGN OF ESCALATION
Comedy veterans and lawyers who spoke to CTVNews.ca all said the notion of asking audiences to sign NDAs is relatively new.
Former standup comedian Mark Breslin and founder of the Yuk Yukās comedy clubs told CTVNews.ca, in all his years, āIāve never heard of anything of this sort ā¦ I think it would be a very bad thing because it would inhibit people from going to shows.ā
āWhat Iām aware of comedians not wanting to be taped or filmed privately -- I understand that,ā he said in a phone interview. āBut I wouldnāt see a show where you couldnāt talk about it?ā
Davidsonās request appears to be an escalation of a trend among some comedians -- including Ali Wong, Dave Chappelle and Kevin Hartāwho are attempting to clamp down on fans sharing details of their live performances.
But Breslin argued that āitās part of the dealā for people to critique and comment on comedianās work after their show.
āIf I go home and tell my wife what a great show it was, will (Davidson) hit me with a US$1-million lawsuit?ā he laughed. āI have no idea what was on his mind and why he would want to go to that extend to shut down discussion about his work.ā
As for what prompted Davidsonās request, it could be connected to the heās had with crowd members in the past few months. , he reportedly yelled at audience members for using their phones during the show.
But if this latest move is an attempt to pre-empt such incidents in the future, or to prevent videos of those interactions going viral, Breslin says itās like āfiring off a cannon to kill off a bug.ā
HOW LEGAL OR ENFORCEABLE ARE THESE?
New-York-based entertainment lawyer Ivan Parron told CTVNews.ca that Davidsonās NDA tries to take into account the reality of fans more easily copying comediansā material.
āWhat youāre seeing is an evolution of content owners trying to protect their content,ā he said in a phone interview. Parron also noted the move could be Davidsonās attempt to drum up some free publicity for upcoming shows or even related to the upcoming taping of a comedy special.
reported the San Francisco show may have been part of a Netflix special taping, but none of Davidsonās representatives confirmed that.
Fellow New York lawyer Barry Heyman, whose practice focuses on entertainment and intellectual property law, said Davidson's NDA isn't standard practice.
"Some comedians try to prevent their copyrighted work from being reproduced but this goes beyond that. Trying to prevent social commentary on the work is not protected by copyright law," he wrote to CTVNews.ca in an email.
Meanwhile, Vancouver-based entertainment lawyer Arthur Evrensel laughed at the āridiculousā notion that Davidson would ever attempt to go after fans for speaking about his jokes or shows.
āWhat Mr. Davidson is saying (to fans) is, ālisten, if you guys tell (others) what my jokes are, thatās going to damage me,āā Evrensel said in a phone interview with CTVNews.ca. He explained that in Canada, these types of clauses āhave to be reasonable in circumstancesā and the penalties canāt be āunconscionable ā¦ or grossly one-sided or oppressive.ā
But he said the onus is on Davidson to prove to the courts in the U.S. the exact damages he incurred came from people talking about his show.
āHe hasnāt explained why heās doing this ā¦ he must have something unusual or specific or unique that he feels he has to protect,ā Evrensel said.
He also explained that sometimes performers threaten to sue āto scare people.ā Both he and Parron said this could be what is happening, with the latter saying the NDA is meant āput people on notice.ā
But would the NDA pass muster in a U.S. courtroom?
Jonathan Handel, a U.S. entertainment lawyer and professor at the University of Southern California's Gould School of Law told CTVNews.ca by phone that āitās very uncommon and this is more of a triumph of lawyers over good sense.ā
He said enforcement of the NDA was laughable and said that a court would find the fine oppressive. Handel said he wasnāt aware of any other comedian doing this. āIt really is pushing it to try and turn your audience into literally a captive audience.ā
Parron noted that the true question at hand is how much the artist is willing to spend to make a point in clamping down on chatter about their comedy show.
Itās unclear whether fans attending Davidsonās next show, set for Dec. 9 in Hollywood, Fla., will be asked to sign a similar NDA.
