“The penalty would gain as many laughs in court as Pete is likely to gain on his tour,” Jonathan Handel, an entertainment lawyer and lecturer at the University of Southern California’s Gould School of Law, told The Washington Post.
The move is an escalation from where artists have typically ventured. Big-name comedians such as Dave Chappelle — fearful of working material leaving the confines of a venue — have required audiences to secure cellphones in locked pouches. Louis C.K., fresh from admitting sexual misconduct, threatened to sue audience members if his jokes were reproduced “in any form.”
But a nondisclosure agreement barring fans from even speaking about the show does not appear to have precedent for a live show, and successfully suing a random fan for $1 million would be difficult if not impossible, said Handel and Thomas Dunlap, a Virginia-based attorney focused on intellectual property law.
Davidson, a “Saturday Night Live” cast member, required fans to sign the nondisclosure agreement ahead of a Nov. 27 show at Sydney Goldstein Theater, the San Francisco Chronicle reported.
The agreement said audience members “shall not give any interviews, offer any opinions or critiques, or otherwise participate by any means,” including on social media, to protect “works-in-progress” creative content, according to the document posted by Stacy Young, who said as a ticket buyer she received the NDA before the show.
Davidson would probably face an uphill battle if a fan violated the agreement. He would need to have expert witnesses prove that harm to his professional career or reputation amounted to seven figures, Dunlap said.
“If I say, ‘that show sucked,’ that’s not a million dollars in damages,” Dunlap said. “If he was my client, I’d tell him this is unenforceable. I don’t see any big upside to this.”
Proving, for instance, that giving an interview about a show is worth $1 million “is really on the edge of unlikelihood,” Handel said.
The NDA, then, was more likely created to deter anyone who may break the rules and not something that could be reasonably enforced in court, the attorneys agreed.
A legal representative, manager and representative for Davidson did not return requests for comment. The NDA posted by Young referenced enforcement by Cowardly Dog Inc., which Davidson oversees. Eric Binder, who is an agent for the company in California, declined to comment.
Entertainment Weekly reported that the San Francisco show may have been part of a Netflix special taping, adding to speculation that the NDA was related to that, but Dunlap said that would provoke copyright issues.
“Talking about the show has nothing to do” with copyright, he said. Netflix did not return a request for comment. Neither did Live Nation, which produced the show. NBCUniversal referred questions to Davidson’s team.
Fans have posted about signing NDAs for a month, including at a show in Minnesota on Nov. 9.
Davidson may be motivated to distance himself from further stand-up fallout. He went on a profanity-laced tirade at the University of Central Florida in September, railing against college students who filmed the show despite a prohibition on phones.
“The optics of going to court and suing one of your fans is really pretty ugly,” Handel said. “It would be foolish to do that.”
Correction: The last quote in this story was originally attributed to Dunlap. It was Handel’s quote. This story has been updated.