Banning photography at concerts is not so easy

Most people take photos at concerts or festivals. Many of them then upload their snapshots to Facebook and other sites to share with friends and family.

But what are the legal consequences? Taking photos at a live performance and posting them online may be illegal. It can also have a considerable economic impact. Event organisers don’t like it when amateur photographers undermine their costly exploitation rights. That’s why most organisers print "photography prohibited" on tickets or on signs at the venue. But this may be useless.

General terms and conditions

As taking pictures at live events is not statutorily prohibited, the visitor and the organiser must agree upon such a prohibition contractually. The conditions that apply to most contracts of this kind drafted by one party are usually qualified as "General Terms and Conditions" (GTC). The same applies to a general prohibition against photography. When assessing whether a prohibition against photography has been validly agreed upon, the extensive legislation regarding the applicability and validity of GTC needs to be considered.

GTC are contractual stipulations that must be agreed upon when concluding the purchase contract for the ticket. GTC printed on the back of an invoice, delivery note or the ticket itself are usually useless. As the contract was concluded prior to the stipulation of the GTC and no party may unilaterally change parts of an already concluded contract, GTC served from one party to the other after the contract has been concluded do not come into force.

Commercial practice?

The argument that customers should know that event organisers don’t want them to take photos at their events has no bearing on whether such a prohibition would automatically be part of the purchase contract. Commercial practice does not support an automatic ban on photography at live performances. Even the questionable theory that companies involved in "bulk business" (Massenverkehr) can automatically assume that their GTC would be applicable to all of their contracts is not valid in these cases. This theory was discussed in connection with banking and insurance, which are in no way comparable to the selling of concert tickets. Moreover, the Supreme Court recently signalled that it will not uphold its position in favour of the automatic applicability of GTC used by banks and insurance companies.

Conclusion

For GTC to be valid they need to be part of the purchase process. Ticket sellers need to ensure that customers know that photography is forbidden when they buy tickets. A brief review of the sales methods used by major Austrian ticket sellers reveals that very few sellers validly implement this prohibition into the purchase contract. This might be understandable when the purchase contract is concluded between physical persons (e.g., at a kiosk), but not when the purchase contract is concluded electronically. Web shops can be easily structured to ensure that GTC, including a prohibition against photography, will be validly agreed upon. Event organisers should pay more attention to this issue.