Fair deal or iMoan? Kate Bush’s request to leave the smartphones at home

Love them or loathe them, mobile communication and recording devices have become an integral part of our lives. They not only accompany us through many of the most intimate and meaningful experiences in our lives but allow us to record them and share them with others. There can be occasionally heard, however, the still, small voice of someone asking us not to.  One such moment is discussed here by Katfriend and occasional guest blogger Dorothea Thompson. This is what she says:

Kate Bush (right), the idiosyncratic songstress of 'Wuthering Heights' fame, played her first live show in 35 years at London's Hammersmith Apollo last Tuesday night, kicking off 22 dates at the venue, all of which sold out in minutes. But before Bush made her celebrated return, she made a request via her Fish People website: that it would “mean a great deal” if fans refrained from taking photos or filming during the shows. The reason given was that she wanted to have contact with the audience, “not with iphones, ipads or cameras”. But the request is pertinent to the persistent issue of photos and video recordings at live events, and stakeholders' attempts to control them.

Copyright may subsist in various elements of a live performance including music, lyrics, choreography, sound recordings, and visuals. Taking a photo or a video of such elements may constitute copyright infringement as a reproduction of the respective copyright works. The dissemination of that image or recording, such as sharing via social media, may itself constitute infringement as communication of the work(s) to the public by electronic transmission.

The Hammersmith Apollo

A potential exception to infringement may be private use, but this could only be relevant to capturing the photo or video, and not to its dissemination. An alternative may be criticism, review or reporting of current events or as, of 1 October, the UK's new fair dealing quotation exception. But it seems unlikely that the casual naming and dating of a clip online (accompanied by those irritating hashtags) would inadvertently constitute sufficient acknowledgment. Further, these exceptions apply only in relation to works not previously made available to the public -- possibly barring this exception for one-off, first-time, or highly secretive events.

So it seems that taking and sharing photos and videos, without permission, are likely to remain potentially infringing acts. For rights-owners, practically speaking, what can be done?

Like initial responses to control file sharing, heavy-handed user-directed action is likely to be both ineffective, and bad PR (a July white paper from the American Bar Association states that US anti-file sharing lawsuits “have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff”).

Almost everyone attending an event now has at least one device on their person, and there are no means of telling those who wish to take photos or clips for private mementos from those who seek to publish them online (likely the majority). Smartphones, tablets and the like are seen as essential items, and are high-value in terms of not only financial but sentimental worth. This makes control measures such as confiscating devices on entry not only logistically difficult, but also a potential brand perception disaster: 'criminalising' your fans may not make good business.

There was the 2011 story about an Apple patent for infrared technology for iOS device cameras that could prevent copyright infringement by blocking users from taking pictures or shooting video at concerts, cinemas, etc (where infrared would be emitted into the audience), but it seems that was never implemented. With the continual blurring of interests between the hardware producers and content industries, however, perhaps technology will provide future solutions.

In the meantime, and with merely a few words, Kate Bush resolved the issue, for her at least, and only furthered her brand loyalty: the media output thus far has apparently been limited to official photographs. This suggests there is a way to handle the situation, and it isn’t via the courts (apologies, fellow lawyers!)

By further example, at a recent Secret Cinema ‘Back to the Future’ immersive cinema events, attendees were asked to leave phones and personal cameras at home -- apparently in keeping with the 1950s theme. But the allowance of disposal cameras (sold at the event) somewhat undermined strict historical reasoning; and with official digital photos published via social media throughout, the suggestion was more that there was something to be gained by the audience from the lack of constant distraction provided in particular by smartphones.

Technology has undoubtedly completely changed the way in which audiences consume content and interact with artists, performers, and events. Aspiring musicians, actors, writers, etc almost universally use social media and other technological tools for direct, instant access to fans and potential fans. Perhaps the price of this constant access is the expectation from audiences that in return they are able to share their experiences across social networks -- such sharing probably only increasing with advances such as the roll-out of 4G.

Conceivably, to overcome the mass urge for media-sharing (otherwise encouraged by brands and rights holders), an event must highlight the benefits to its audience of a technology-free experience. Roger Daltry of The Who recently summed it up, stating that experiencing a gig via a phone is “weird”: “Looking at life through a screen and not being in the moment totally -- if you’re doing that, you’re [only] 50% there”.

But what would happen with less adoring, respectful.. (middle-aged!) fans than those of Ms Bush? Would a polite request similarly work for a brash, anarchic punk rock gig? Or a main-stream, mass-market huge capacity festival? With Bush herself drawing a distinction, stating she had purposefully chosen an intimate theatre setting rather than a large venue or stadium, her request may in fact have been a unique solution for a wholly unique artist.