Should Comedians Have Audiences Sign NDAs?

Pete Davidson Photo: Will Heath/NBC

It was recently revealed that Pete Davidson, SNL cast member/celebrity ex-boyfriend/enthusiastic tattoo canvas, made audience members at his San Francisco Sydney Goldstein Theater show sign a $1 million NDA before being granted admittance. The NDA included the following language:

“The individual shall not give any interviews, offer any opinions or critiques, or otherwise participate by any means or in any form whatsoever (including but not limited to blogs, Twitter, Facebook, YouTube, Instagram, or any other social networking or other websites whether now existing or hereafter created).”

Serious stuff! This is the most extreme stance yet in comedians’ efforts over the last few years to crack down on people recording their material before they’re ready to officially release it. (The most talked-about example of this approach is Dave Chappelle having people put their cell phones in locked Yondr pouches, a policy later adopted by Louis C.K. and Aziz Ansari.)

Stand-up comedy is a form created in public. A comedian builds an act by trying and failing in front of a live audience. Before it is filmed for a special or a late-night set, the comedian will try it in increasingly larger venues. Traditionally, this is done with an implicit social contract that the audience isn’t going to interrupt the performance or, say, film it and put it online before it’s done. But that contract has become increasingly complicated in the era of comedy reviews, gossip blogs, and social media. It’s understandable, then, that comedians would seek ways to protect their gestating work. The question is how far they’re going to take it — and whether they even can keep audiences from leaking their material. Is Davidson’s choice to make fans sign NDAs an isolated incident or a sign of a new trend in live stand-up? Is it too extreme, or is it reasonable?

To try to make sense of it, Good One host Jesse David Fox had a conversation with TV and comedy critic Kathryn VanArendonk about the Davidson NDA and what it means — and what it doesn’t mean — for the future of stand-up.

Jesse David Fox: When I saw this news going around, I knew it was the sort of thing I was supposed to be shocked by, but I wasn’t. I understood where Pete was coming from, especially because his situation is more extreme than normal, because unlike essentially every comedian who didn’t commit a crime, his every move has the potential to be gossip fodder. In my mind, all I’m seeing is Pete trying to protect the process in which stand-up is traditionally made. Just like an author wouldn’t want people reading a book in the middle of her writing it. Or, maybe more similar, TV-show creators and filmmakers have legal protections from preventing people from leaking footage without their consent.

Kathryn VanArendonk: I wasn’t surprised when I first read about phones being put in locked pouches. That’s a form of audience control I understand. (Even though I was annoyed to be locking up my phone for the long period between when the doors open and the act actually starts.) But NDAs feel like an entirely different bridge to be crossing, a situation that tries to address a real-but-moderately-sized problem with a gargantuan, ill-fitting solution. It’s a nuclear option, and like most things that come with “nuclear” in the phrase, I worry about long-lasting and wide-reaching side effects.

For one, the wording of this particular NDA is an absurd overreach. According to this legal document, no one who goes to see this show can use any form of social media to say whether or not they liked it. These are not film critics who are agreeing to an embargo that they will later be released from. It’s not a legal agreement that prevents people from filming or recording and then posting those files later. It technically makes it possible to sue someone for posting an Instagram Story that says, “Not my favorite Pete Davidson show. I think he was off his game!” That’s so too far!

And while I do sympathize with the desire to protect his material, there is a difference between protecting the material and silencing an audience, who, like it or not, do live in the world. As do comedians!

One other thought I had to start: Because what you’re describing is an ideal world where audiences respond to early material with the understanding that it’s unfinished, there is a corporate parallel for this. It sounds like what Davidson wants is a focus group, a group he can use to test out some material and swear them to secrecy in case it’s bad. In which case, I would recommend he run it like any corporate focus group, where the audience would be the ones getting paid, not paying for the privilege of participating.

JDF: Do I think an NDA is weird and extreme? Yeah, man. But, again, Pete is an extreme situation. That said, am I surprised no one has done it before? Yeah. Just seems like something this control-freak-leaning breed of people would’ve tried. I imagine people have avoided it because it’s creepy and fascist.

So, sure, an NDA is probably too much, but I do think it’s worth noting that Pete felt he needed to do this. It’s disturbing that he did this and it’s disturbing (though arguably much less so) that he felt like he needed to, as it reflects that stand-up comedians do not trust their own audiences to hold up their end of their bargain. I’ll note that though this historically tends to be a big, famous comedian problem (Eddie Murphy said part of the reason he initially quit stand-up is because early material would be leaked or reported on), the sense I get from talking to comedians of various levels is that it’s an increasing concern. Should Pete have had his audience, an audience who paid $35, sign NDAs? No. But we are at an impasse. Stand-up has functioned a certain way for decades. If you believe this way of functioning is the ideal way of building material, what do comedians do when that is no longer an option? Comedians, like most artists, thrive in safe spaces (the irony is not lost on me) and the ability to fail. I don’t care about the most extraordinary examples, as I think it prevents us from actually talking about what comedy is supposed to do if audiences won’t respect it.

Also, I don’t think what I’m describing is like a focus group; it’s more like a screening of a TV show or movie that studios have with civilians so the directors can make changes in the edit. This audience doesn’t pay and they do sign NDAs. This is different from Pete’s show, which was a regular show that people paid for, but it’s closest to an early cut of a final product — still entertaining, but flawed. (It should be noted that jokes are not a form that often benefit from multiple viewings, which means if material leaks, someone will not have the need to see or hear it again.) Comedians charge for them because the audience will pay for it. A lot of comedians do working-it-out shows, but they still charge because (1) the venue needs to pay staff, and (2) it’s hard to account for people showing up for free things. You can’t only do these, however, because the audience is too forgiving.

Again, not all comedians operate as described but, you know, a lot do. I ultimately don’t think it’s a big deal and will have any noticeable impact on comedy. Comedians will just have to figure it out. It’s a bummer that it’s happening, but the good ones will be clever enough to stay true to themselves. Chris Rock and the like have been complaining about people taping sets for long before I started covering comedy, and he still was able to put out a good special.

KV: You’ve gotten to exactly the question I was going to ask next, which is something like, “What evidence do we have that any of this — the leaks, the social media complaining, the gossip reporting, any of it — prevents comedians from making good work?” As you point out, of course there are going to be individual cases and extreme examples, but on the whole, it feels like there’s some great comedy out there! And all of it’s gotten made in this same moment, the moment where audiences post stuff and complain about stuff and material unfortunately does leak sometimes.

JDF: It’s a bit of what perspective you decide to focus on. I think none of this really affects the quality of the art — it affects the quality of life of making it.

KV: Which is a real concern, it absolutely is. But it’s another place where what we’re talking about is actually something separate and much bigger than comedy. All artists and creators who are not yet privileged enough to ignore social media have to deal with that kind of response and the quality-of-life issues that come with it now. Look at what’s going on in YA literature, for instance!

JDF: Kathryn, I will not touch the YA-literature issue.

KV: Must get rid of toxic in the community.

JDF: The truth is that stand-up is a very annoying art form to pursue. Arguably it’s the most annoying because it most directly involves other people. All art has audiences, but with stand-up, they’re right there during the creation, which is terrifying and demands such intense vulnerability. So, when these creative partners break that trust, it hurts. (Yes, I know this sounds romantic.) But the tradeoff is that they’re right there during the creation. To voice something that you feel is so specific to your soul and have people instantly embrace it is the tradeoff. What is good about being a stand-up is what is bad about a stand-up. It’s weird.

KV: It is, and the directness is romantic and I can absolutely see why betraying that feels like a betrayal of trust. But — and I am sure we agree on this — you know what else feels like a betrayal of trust? An overreaching NDA! Ultimately, escalating the stakes of secrecy is only going to put a higher value on ruining the secret, and it feels like what Pete really wants (which is an admirable goal) is for the whole thing to be de-escalated.

JDF: Yeah, comedians are masochists. What’s new?

Should Comedians Have Audiences Sign NDAs?