Ariana Grande, Louis C.K. and other performers have taken steps recently to restrict concert photography rights and shield jokes—including efforts some attorneys say are unenforceable overreaches.
Grande took heat earlier this year for requiring press photographers to sign over the copyrights to all photos they took at her concerts. Louis C.K. threatened to sue audience members if his jokes are reproduced “in any form.”
The moves are part of a broader trend of performers trying to assert control in the smartphone and social-media era over how what they do on stage—and how much of it—gets to those who didn’t buy a ticket. They raise legal questions in a space where lines have been blurring between editorial use, governed by copyright law, and commercial use, governed by right of publicity.
“This sneaks up to the line if not crosses it, and I think it does cross it,” intellectual property attorney James Sammataro of Pryor Cashman LLP in Miami said of Grande’s effort to control concert photographs. He also said fair use exceptions to copyright protection would generally thwart any attempt by Louis C.K. to block sharing of his jokes as part of news or commentary.
Rick Kurnit of Frankfurt Kurnit Klein & Selz in New York said celebrities have boosted efforts to control their performances and image, driven by online media and the proliferation of celebrity culture.
“They’re trying to get more of a handle on what is done with their celebrity and how it’s handled,” Kurnit said. “Celebrities who understand the right of publicity—that they can stop people from using their image in an ad—are frustrated that they can’t stop people from using them in a news story.”
Grande’s music label didn’t immediately respond to a comment request, and her touring company couldn’t immediately be reached. Louis C.K. didn’t immediately respond to a request for comment made through his web site.
The ubiquity of smartphones has led a growing list of performers, including comedian Dave Chappelle and singer Alicia Keys, to require audience members to put their phones inside lockable neoprene sleeves made by 2014 startup Yondr. Aside from intellectual property concerns, performers have said they like a more intimate experience with fewer distractions for themselves and fans. Attorneys also note that controversial jokes posted online have generated bad press, putting comedians who push boundaries on guard.
Louis C.K. recently resumed touring after a nine-month break following public admission of past sexual misconduct, and then faced new bad press over controversial jokes. Earlier this month he notified audience members through venues hosting his shows that he would deploy Yondr pouches at his “phone-free” gig. But the notice also barred fans from sharing jokes “in whole or in part, in any form, media or technology” without written consent, lest they “be subject to all available legal remedies.”
Sammataro said C.K.'s sweeping prohibition on any reproduction of his jokes ostensibly includes repeating them to comment or criticize, which “cuts against the very grain of copyright law.” The Copyright Act protects fair use of copyright material in certain circumstances, depending on the purpose of the use, nature of the original work, amount of the work used, and effect on the value of the work. When the purpose of use is to critique, the pendulum generally swings toward fair use.
Yondr may stem audio leaks like ones that brought Louis C.K. his latest bad press. But trying to shield jokes from commentary-based dissemination is “a lost cause,” Kurnit said. Nothing stops performers from stating that their acts are protected by copyright. But they can’t do much if someone relays a joke to make a point about Louis C.K.'s work rather than to try to get laughs.
“Louis C.K. can’t use copyright law to shut down use in journalism,” he said. The question would be “whether or not someone only used as much as necessary to make the journalistic point, and didn’t step over the line to exploit the creativity or artistry,” he said.
Photojournalists at concerts often must work within a restricted area and only during the first few songs, attorneys say. But the waiver Grande required photojournalists to sign also assigned the copyright of their work to her touring company, GrandAriTour Inc. She also demanded that they submit copies of every photo taken, and she only guaranteed photographers the right to use one photo—approved by her—in one news item about the performance. Any other use of any concert photo would require additional written consent.
“My first reaction was ‘Wow,’” Sammataro, who focuses on the entertainment industry, said. “People are saying it’s a troubling overreach. I agree. I’m not seeing the upside.”
The National Press Photographers Association, The Associated Press and 14 other organizations jointly protested the waiver in March. Mickey Osterreicher, general counsel for the NPPA, said it’s “hard to understand how someone could ask for something this onerous.”
Aspects of Grande’s agreement may not be enforceable. June Besek, a media and copyright law professor at Columbia University, noted that the waiver is framed as a work-for-hire agreement, but lacks legally required elements of such a contract. Work-for-hire pacts that don’t involve an employee-employer relationship are limited to specially commissioned works fitting a limited list of categories, including contribution to a collective work, supplement to a primary work, or a compilation of pre-existing materials.
Photographs aren’t one of the contractor categories, Besek said. In addition, she said a work-for-hire agreement requires the signatures of both parties, while the waiver only has space for the photographer’s.
Grande’s agreement states that “in the event the photographs” aren’t deemed work-for-hire, the document represents an assignment of rights. Besek said photographers can sign away their rights. But they can only do so if they, and not their employer, own the copyright. Also, doing so would require the photographer’s signature, Besek said. An all-caps notice at the bottom of the waiver form seems to try to circumvent that requirement by saying merely taking a picture represents consent without it, stating that “any photography of artist by photographer shall be deemed acceptance” of the terms.
“I think it’s unreasonable,” Besek said, adding that she doesn’t see any financial loss for Grande absent the rights grab. “It’s just fundamental fairness. Why should she own that stuff?”
Sammataro and Kurnit pointed to copyright lawsuits against celebrities for posting paparazzi photos of themselves on social media as evidence of a broader tension between the groups. Photographer Robert Barbera sued Grande in the U.S. District Court for the Southern District of New York May 13 for posting his picture of her to her 155 million Instagram followers.
Kurnit noted that the celebrity represents much of the value of such photos, and that Grande can block commercial use of her image under right of publicity laws. But a photographer still owns the copyright, retaining the right to use it editorially or sell the rights to do so, he said.