I AM THE BLAWG: THE LAW OF THE PIT

Like nearly everyone else on this site, I have spent my share of time at shows, both in and out of the pit. How is it that people can come together in a cramped club, run into each other, and stage dive onto one another, but manage to not get sued for any of it? Why are pits and their associated conduct considered acceptable at shows, but not on the subway?

On an intuitive level, you probably already know that while this is accepted at the show, you won’t get away with the same conduct elsewhere. If someone you did not know intentionally ran into you while you were waiting for the elevator, you would rightfully be upset about it. In the context of a show, the same conduct is not only acceptable, but many times encouraged.

Our legal system allows people to recover for injuries through tort law. Tort law is defined as any civil (as opposed to criminal) action (court case) for damages (money usually, but other relief is available) that is not based on contract law (I’ll get into contract law next week). Tort law recognizes that a person is liable for the results of his actions, even if those actions are legal. It allows people to recover for injuries that were not foreseen and caused by somebody else. Because you did not have a contract, which will provide a method for calculating damages, it is left to the courts to determine the amount of damages.

In this case, if you were going to sue, your cause of action would be battery: an intentional act to cause a harmful or offensive touching to another person. Battery is an intentional tort, which is any act where the person committing the tort, also known as the tortfeasor, intends the conduct that results. Here, intent does not mean that the tortfeasor necessarily intended to hurt the victim. Instead, it means that the tortfeasor intended the conduct that resulted in the harm. You are fully within your rights to practice your windmills, gorillas, lawnmowers, and karate kicks, but if you hit someone, then you may be liable for that conduct.

Ok, that’s fine and dandy, we have a basic cause of action in battery. I’m in the pit, and I didn’t want that sweaty dude covered in tattoos and b.o. getting anywhere near me. He somehow didn’t get the memo, intentionally ran around in the pit, hit me, and I think that was harmful or offensive. Can I sue him for running into me?

Not so fast. While the law gives with one hand, it also takes away with the other. In this case, it is going to take away your right to sue if you have consented to the conduct.

Consent is a defense against tort liability that is available where it can be shown that the tortfeasor acted with the victim’s consent or permission. The tortfeasor admits to committing the tort, but claims that he is not liable because the victim expressed a willingness that the event occur. This could be as simple as saying “I consent to your running into me,” but that is unlikely at best. You could sign a waiver, but who carries those around? As a result, the law recognizes that consent can be expressed in many forms, including words, deeds, writing, or implied. A failure to object to customary conduct can be considered consent as well.

Implied consent will be the relevant form of consent for a show. You have agreed to a certain amount of contact based on your conduct, though this can be exceeded by going beyond what is permitted. With a large group of people that don’t know each other, they must base their conduct on what will be considered acceptable for the group. On one end of the spectrum, there will be some people will stand at the back and barely move. On the other, there are those that will spend all night in the pit. As you move through the venue, the amount of contact that you have impliedly consented to will vary. Some of their conduct will be within the realm of implied consent, and some will exceed the implied consent. If you come to this site regularly, you probably already know what the general rules are for behaving yourself while you are in the pit. If you don’t, a good recap can be found here.

If you are standing in the back of the venue, you have not consented to much contact that you would not be subject to outside of the venue. If the venue is crowded, you should expect to people to have to squeeze by you trying to get to the front. Occasionally, you might have some who has had too much to drink walk into you. As you are in a venue that sells alcohol, it should come as no surprise that someone will have too much and stumble into you. If they puke on your jeans, that would probably exceed your implied consent. Similarly, you have not consented to someone starting a pit in the back of the venue, or diving off the soundboard into a group that is facing the stage.

If you decide to move closer to the stage, and are now standing near edge of the pit, you have impliedly consented to what you should expect to happen there. You should expect that people are going to run into you. You should expect that drinks might get spilled on you. People will be pushing past you to get into the pit. On the other hand, you should not expect that people in the pit are going to aim for you while they are moshing and you are not. Yes, they might end up on you, but it would be as a result of a collision in the pit.

If you jump into the pit, you have further increased the conduct to which you have consented. When entering the pit, you expect that there will be rough contact, and that you might end up on the floor. You should expect that people are going to run into you, and that people might hit you from behind after hitting other people. If you fall down, you expect that people will help you up, or at least avoid you until you get back to your feet. However, even in this situation, it does not mean that you have consented to all conduct. Your implied consent could still be exceeded if someone intentionally hits you from the back. Similarly, while pushing each other is expected, hitting or kicking would exceed the consent.

The level of consent changes with the nature of the activity, and the people present. What is acceptable for one situation may be inappropriate for others, even with the same group of people. The law generally doesn’t require that you keep a running tab on what is permitted conduct within a group, but expects you to behave appropriately for the situation.

A quick answer to question from the mailbag: Can you explain the differences between copyrights, patents, and trademarks?

As I discussed last week, copyright protects original works of authorship. A large part of music law is centered around copyright law.

Trademarks are used by individuals and businesses to indicate to consumers that a product comes from a certain source. Trademarks are generally words, phrases, logos, or other item that identifies a product in the marketplace. Some examples would be Microsoft, Mattel, and the shape of a Coca-Cola bottle. There are some trademark implications in music law, and I’ll get to it in April.

Patents protect inventions and functional developments. Patent holders are required to disclose how their invention works, and in return, they are granted a monopoly over the production of that invention for a period of 21 years. Generally, there is not much crossover between patent law and entertainment law.

Next week: something your band probably hasn’t done yet, but should be thinking about anyway.

-AS

DISCLAIMER
Antonin Skullia, Esq. is licensed by the one of the many fine states of this great union as an attorney and counsellor-at-law. While he is a licensed attorney, nothing in this article should be construed as specific legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only.

Reading this article, replying to its posts, or any other interaction on this site does not create an attorney-client relationship between you and the author. No attorney-client relationship has been created, nor should one be implied. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

If you have specific issues you would like to see discussed in future columns, you may contact Antonin at antonin [dot] skullia [dot] esq [at] gmail [dot] com. However, Antonin will not be able to respond to any requests for specific legal advice.