Pete Davidson And Other Comics Who Think An NDA Will Work Should Reconsider

On Saturday, the music news website Consequence of Sound noted that Saturday Night Live cast member Pete Davidson was requiring attendees of his recent comedy shows to sign a non-disclosure agreement that, among other things, included a potential fine of up to $1 million.

The thing is, it’s not going to work. Louis C.K.’s previous attempt to copyright his live performances (while implying a shaky legal threat against anyone who “leaked” them) ultimately came to nothing. So, too, will Davidson’s latest attempt to prevent audiences and critics from discussing what he has to say, after he says it.

Consequence of Sound initially discovered the SNL star’s NDA thanks to an attendee who, commenting on the Facebook event page for Davidson’s November 27 performance at the Sydney Goldstein Theater in San Francisco, shared screenshots of the last-minute legal agreement and its stipulations. Aside from leaking the NDA itself, the patron revealed it had been sent to her the day of the performance and criticized Davidson and the venue for the murky operation.

“I get that comedians are protective of their jokes and don’t want their routines rebroadcast, but it’s rather Orwellian to not allow anyone to share an opinion on it,” read the post. “Don’t perform for the public if you don’t want people to have an opinion about it!”

Chief among the NDA’s requirements was a provision stating attendees “shall not give any interviews, offer any opinions or critiques, or otherwise participate by any means or in any form whatsoever… in the disclosure of any Confidential Information or any other information relating to this Agreement, the Creative Content, the performance or the business of Company or its Affiliates.” In other words, those who wanted to attend Davidson’s stand-up show would be legally required to not discuss it outside the venue on any platform — including “blogs, Twitter, Facebook, YouTube, Instagram, or any other social networking or other websites.”

Aside from the aforementioned fine of $1 million, the signature portion of the NDA also included lines for the signatory’s email address, cell phone number, and Twitter and Instagram handles. (Weirdly, neither Facebook nor YouTube account names were required, though the document’s necessitating a “full legal name” and an email could potentially cover these.) Basically, it asked for the means to pursue any potential violators.

Davidson has been requiring show attendees to sign an NDA since a November 7 show in Minneapolis. So, in a way, the story’s virality this weekend looks over the fact that this isn’t necessarily a new practice. The comic has been doing this for almost a month, at least, and considering his recent comments about performing comedy at college campuses (and the previous stories that likely inspired these comments), he and his team have probably been considering using an NDA, or something like it, for a while now.

Whether or not the NDA’s terms will hold up in court — should an eager fan or critic ignore it and take to social media or another platform, and should Davidson and company decide to sue them — remains to be seen. Though, Louis’s “copyright notice,” which popped up last May, serves as a good comparative example.

In a New York Times article concerning the legal maneuverings, copyright and entertainment law experts spoke regarding the veracity of the comedian’s legal claims, and whether or not a case could (or would, or should) ever transpire as a result of their breach. One said the copyright notice was “overreaching in terms of copyright law” as “the law grants certain rights, but it withholds certain others.” Another added, “If it’s someone who tweeted a couple of sentences from a gag, [Louis] would get laughed out of court.”

The particulars notwithstanding, most of the experts the Times spoke with agreed that, in a legal manner of speaking, Louis’s copyright notice was effectively binding agreeable audience members to a contract of sorts. Davidson’s NDA, meanwhile, is an actual, honest-to-goodness contract requiring one’s name, signature, and all sorts of other personal details to boot. So, unlike the former, the latter actually has a legal document to stand on.

But this doesn’t mean its legal claims are actually legal, or that, should a person or group decide to test them in court, it will hold up under scrutiny. It’s impossible to tell without there being a court case or lawsuit to consider, of course, but legality notwithstanding, one thing is clear: the latest efforts of comics to protect their jokes from entering the public discourse are becoming increasingly unfeasible.

It’s one thing to require audiences to lock up their phones, a practice that comedians like Chris Rock, Dave Chappelle, and Aziz Ansari (as well as musicians) have put into regular use without issue. It’s another thing entirely to, essentially, enforce a gag order against one’s paying customers. Such an attempt to silence any and all potential discussions, especially criticism, is — to repeat the aggrieved Sydney Goldstein Theater patron above — an “Orwellian” move to make.

Besides, it’s not like Louis’s copyright notice did him any good. Critics and audiences alike are still talking about his new “comeback” tour in droves, both for its content and what it means regarding any potential recourse for his victims. So, what’s to stop show attendees from discussing Davidson’s more recent gigs? Apparently, not even an NDA, as many who supposedly attended these performances have taken to sharing and discussing his gnarlier jokes via anonymous social media accounts.

For better or worse, that’s just how the modern pop cultural zeitgeist works.

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