The news that comedian Pete Davidson is demanding that fans sign a $1 million NDA to attend his comedy shows has received widespread ridicule and attention. But even if his groupies violate the rules of the agreement, the "Saturday Night Live" star might not legally be able to prove that they owe him such a large sum of amount.
"I personally haven't seen one as high as $1 million in a long time," says attorney-at-law Ricardo P. Cestero of Greenberg Glusker Fields Claman & Machtinger LLP, who practices in Los Angeles. He notes there have been a few exceptions. "I've seen $1 million in liquid damages in NDAs for reality shows where the production company doesn't want the results released before it airs." For Davidson, a "$1 million provision will be hard to enforce," Cestero added.
Cestero elaborated on the taxing legal logistics that Davidson would have to bring forth to a judge if he decides to sue a fan for divulging the contents of his comedy show.
"It would be hard for Pete Davidson to establish that he and the people attending show reasonably anticipated $1 million in damages," Cestero said. "It's just a number to scare people away from breaching. Now, that wouldn't make entire agreement unenforceable, it would simply mean that Davidson is going to actually have to prove the harm that's actually suffered from whatever post is in violation. The agreement is enforceable, but I would be surprised if the court would award the million dollars in liquidate damages."
Before Davidson's show at San Francisco's Sydney Goldstein Theater, attendee Stacy Young posted the NDA agreement she received, entailing that "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)." Young refused to sign the agreement, telling Variety that it was "off-putting in an Orwellian thought police way."
Cestero said comedians often use NDAs to keep their jokes from overexposure, and that it is entirely possible that Davidson is hyperaware of social media, hence the agreement.
"I expect he and every other comedian have been having people sign NDAs when they test out shows in front of live audience because they don't want jokes to get out there," Cestero said. "My guess is he's extra sensitive to social media. All performers are in this day in age, they have to be. People are more concerned and more careful about it."
In a cover story for Paper Magazine last month, Davidson explained why he took down his Instagram account.
"I got rid of the Internet because I can't be on it," Davidson said. "And anytime I would go on, I would just see horrible things written about me all the time."
A representative for Davidson didn't immediately respond to a request for comment.