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 ‘Saturday Night Live’ 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, shared screenshots of the agreement on Facebook.

By signing the NDA, attendees agreed:

  • Not to “give 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 wouldn’t 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 Yuk’s comedy clubs told CTVNews.ca, in all his years, “I’ve never heard of anything of this sort … I think it would be a very bad thing because it would inhibit people from going to shows.”

“What I’m aware of comedians not wanting to be taped or filmed privately -- I understand that,” he said in a phone interview. “But I wouldn’t see a show where you couldn’t talk about it?”

Davidson’s request appears to be an escalation of a trend among some comedians -- including Ali Wong, Dave Chappelle and Kevin Hart—who are attempting to clamp down on fans sharing details of their live performances.

But Breslin argued that “it’s part of the deal” for people to critique and comment on comedian’s work after their show.

“If I go home and tell my wife what a great show it was, will (Davidson) hit me with a US$1-million lawsuit?” he laughed. “I 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.”

As for what prompted Davidson’s request, it could be connected to the profanity-laced arguments he’s had with crowd members in the past few months. At a show at the University of Central Florida, 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 it’s like “firing off a cannon to kill off a bug.”


HOW LEGAL OR ENFORCEABLE ARE THESE?

New-York-based entertainment lawyer Ivan Parron told CTVNews.ca that Davidson’s NDA tries to take into account the reality of fans more easily copying comedians’ material.

“What you’re seeing is an evolution of content owners trying to protect their content,” he said in a phone interview. Parron also noted the move could be Davidson’s attempt to drum up some free publicity for upcoming shows or even related to the upcoming taping of a comedy special.

Entertainment Weekly reported the San Francisco show may have been part of a Netflix special taping, but none of Davidson’s 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 “ridiculous” notion that Davidson would ever attempt to go after fans for speaking about his jokes or shows.

“What Mr. Davidson is saying (to fans) is, ‘listen, if you guys tell (others) what my jokes are, that’s going to damage me,’” Evrensel said in a phone interview with CTVNews.ca. He explained that in Canada, these types of clauses “have to be reasonable in circumstances” and the penalties can’t be “unconscionable … or grossly one-sided or oppressive.”

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.

“He hasn’t explained why he’s doing this … he must have something unusual or specific or unique that he feels he has to protect,” Evrensel said.

He also explained that sometimes performers threaten to sue “to scare people.” Both he and Parron said this could be what is happening, with the latter saying the NDA is meant “put people on notice.”

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 “it’s very uncommon and this is more of a triumph of lawyers over good sense.”

He said enforcement of the NDA was laughable and said that a court would find the fine oppressive. Handel said he wasn’t aware of any other comedian doing this. “It really is pushing it to try and turn your audience into literally a captive audience.”

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.

It’s unclear whether fans attending Davidson’s next show, set for Dec. 9 in Hollywood, Fla., will be asked to sign a similar NDA.