Developing technologies are beginning to raise new legal issues for performance venues, as the rights of patrons and artists potentially collide. That was the warning delivered by Denis Clive Braham d
RENO, NEV. -- Developing technologies are beginning to raise new legal issues for performance venues, as the rights of patrons and artists potentially collide.
That was the warning delivered by Denis Clive Braham during his presentation "the Modern Day Challenges to Facility Operation" during the International Assn. of Assembly Managers conference, held here July 24-26.
Braham is chair of the sports-business and public-venues practice for Houston-based Winstead Sechrest & Minick.
A primary area of concern for venues and performers is cellular phones with cameras. "They are in their very early stages of technology," said Braham. "People may not be able to physically take a great picture, but what about a few years from now?"
He said it is not uncommon for concertgoers to bring camera phones into a show, snap photos and e-mail them to friends.
Such action can directly violate an artist's legal right to control his or her own image.
"An artist's likeness belongs to them; artists have those rights as a matter of law," said Braham.
He advised facility managers to closely examine the contracts between the venue, promoter and artist to see which rights are covered.
Given the artist's right to his likeness, the venue has the right to toss patrons who illegally snap photos. However, the facility manager's rights are somewhat defined by where the venue falls under the Public Forum Doctrine, which measures a customer's First Amendment rights against those of the facility. For example, a public forum, such as a public park or government building, has fewer rights in limiting a patron's activities than does a privatized arena.
"Usually, if someone buys a ticket, that means you're a non-public forum," Braham said. "But if it is a venue operated by a municipality, you're in a different environment, even if you're selling tickets, than a privatized facility."
Generally, "a ticket is a revocable license to a certain extent," Braham said. "You can't arbitrarily toss someone out, you can't discriminate, but you can set guidelines that every patron is party to. Even though the individual has civil liberties, it doesn't mean there aren't certain rules."
Braham stressed that while there is not yet a legal precedent to bar camera phones from venues, he believes that private venues can ban them based on current rules that allow them to prohibit other devices -- such as tape recorders or cameras -- that could infringe upon an artist's rights.
"I think you can remove that person (using a camera phone), and you don't have to refund their ticket," Braham said, but added that there are several ways that venues can protect themselves against potential suits filed by disgruntled patrons.
Braham suggested that venues update the information on the backs of tickets to include prohibition of camera phones. He also suggested that the information be posted on the Web sites of the facility and the ticket provider, as well as on signage at the venue.
"Let your patrons know what the rules are before they buy the ticket," Braham said.
He said that if a venue has followed the above suggestions, an artist or promoter "would be hard-pressed to hold the facility operator liable" for concert photos showing up on the Internet, because the building has not shown negligence or willfulness.
Braham said that in addition to camera phones, such rules "apply to any kind of technology that captures the image, likeness or voice that's considered the property of the artist."
However, he said that changes could be in the wind. "Ultimately, the Supreme Court takes notice of changes in society. There is the possibility that in 10 or 15 years, the courts think music is not privately owned."