Arcade under Fire

August 2017

Live events sector


The Canadian indie rock group, Arcade Fire, has come under fire for requesting attendees to its Everything Now release show at Brooklyn’s Grand Prospect Hall to wear ‘hip and trendy’ clothes. Apple has plans to live-stream the event on Apple Music and it has been reported that they were the ones to send the notice to ticket holders.


The notice that was emailed to the ticket holders for the intimate gig asked that they refrain from wearing “shorts, large logos, flip flops, tank tops, crop tops, baseball hats, solid white or red clothing,” the notice went on to say “We reserve the right to deny entry to anyone dressed inappropriately.”


The notice did not stop there, ticket holders were asked to make the show a “phone-free experience”. The notice explained that “all phones and smart watches will be secured in Yondr pouches that will be unlocked at the end of the show”.


Now this is Music Law Updates, so naturally the question arises as to the legal standing of the notice. Disclaimer: for the purposes of this article I will pretend that the Arcade Fire gig is to be held in England, and therefore English law is applicable.


As to the notice that was emailed to the ticket holders regarding the ‘dress code’. The key question to ask is when said notice was communicated to the attendees of the gig.  If we go back to 1949 and the case of Olley v Marlborough Court, in this case Mrs Olley booked into a hotel, she made the contract at the reception desk where there was no mention of an exclusion clause. On the back of the door in the hotel room, there was a notice that sought to exclude the liability on behalf of the hotel owners for any lost or stolen goods. Guess what happened, Mrs Olley has her fur coat stolen. It was held that the notice that sought to exclude liability was ineffective, this was because the contract had already been made by the time Mrs Olley has seen the notice and therefore, the notice could not form part of the contract.


If we apply the above to the Arcade Fire gig, if the notice regarding the dress code was communicated before or at the time the contract for the tickets to the gig was made, the notice would likely be found to be effective. However, as it has been reported it appears the notice was communicated to attendees after they became ‘ticket holders’ thus, the notice would likely be found to be ineffective because it was made after the contract was formed.


As to fans being asked to make Arcade Fire’s gig a ‘phone-free environment’, this will likely come down to copyright and the performers’ right found within the Copyright Designs and Patents Act 1988. In short a musical performance is, unsurprisingly I might add, defined a as a performance for the purposes of the Act and it confers certain rights upon the performer.  The rights amongst others include the right not to: be recorded live (except for private use), be broadcast live, and be recorded off a live broadcast.


If we bring this back to Arcade Fire’s attendees being asked to make the gig a ‘phone free environment’, whilst taking into consideration the fact that Apple are live streaming the event (likely for a big payment to Arcade Fire); it appears that perhaps Apple are worried that individuals might be tempted to breach the performers’ right and live broadcast the gig using their phones.  Although very unlikely that a band would ever take a fan to court for breach of their performers’ right, hypothetically speaking it is a possibility.


But back to the Arcade Fire gig, in a recent tweet the band announced ‘Wear whatever you want to any show’ but nothing has been mentioned about the ‘phone free environment’.  Long story very short, I doubt any attendees to the Arcade Fire gig will find themselves in hot water for not following the dress code, but attendees to any gig should be aware about the performers’ right especially with Facebook’s live feature.


By Samuel O’Toole


Olley v Marlborough Court Hotel [1949] 1 KB 532

CMU Daily tries to make sense of the band’s somewhat bizarre marketing plans here  Win Butler replied to a tweet by Brooklyn Vegan directing readers to its report on the dress code by saying, “Hi. Not sure who drafted this email, but it 100% did not come from the band in any form. Not that it matters! Enjoy the clicks”.

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