It’s hard to believe that just a month ago, our news feed was all corona beer memes and light jokes, and now, a few days later, the entire planet is in lockdown.
COVID-19 has disrupted many industries, and the entertainment industry makes no exception: some people are experiencing the damage in real time, while others brace themselves for an unknown future.
Already, some of the world’s largest festivals have announced their cancellation or postponement. If things continue as they are, many others will follow suit in the coming days/weeks. Countless workers in the industry, including artists, producers, technicians, coordinators, touring agents, suppliers, and others are watching their summer plans go up in smoke.
Collectively, the arts are experiencing a strange and monumental catastrophe.
One question that is no doubt on the minds of everyone is this: what to do if we cancel?
For obvious ethical reasons, and because a multitude of factors must be considered on a case by case basis, this article is in no way a legal opinion. Nor does it offer a miracle solution. My only advice: Compromise, solidarity and creativity are in order. Instead of investing in a lawsuit, try as much as possible to save your funds to get back on your feet.
Here are a few things to consider.
1. WHAT DOES THE CONTRACT SAY?
First thing first, you should read your contract carefully: it is precisely for this kind of situation that it was written!
Does it allow cancellation before D-day? Does it provide for compensation or a refund of the deposit? Is there a clear and defined force majeure clause?
No written contract? Know that it is not (always) necessary to sign a document for a contract to be formed: the agreement of both parties suffices. Your e-mails exchanges can establish what the agreement was; as can phone conversations – it’s all a matter of evidence…
For example, the festival may have to fully compensate an artist in the event of a cancellation due to force majeure; on the other hand, the artist may have to reimburse the advance they received, without any compensation: it is the agreement that will dictate the procedure to follow.
2. FORCE MAJEURE?
If this legal term did not make sense a few days ago, there is a good chance it will be the cornerstone of many negotiations to come!
Force majeure (or “Act of god”) is defined in the Civil Code of Quebec as an unforeseeable and irresistible event.
The legal principle is as follows: you can avoid being held liable for breach of contract if you prove that the breach was caused by a force majeure event – unless, of course, the contract specifically provides otherwise. To be a force majeure, the event must have been impossible for you to foresee and prevent its consequences, and it must have prevented you from performing your obligations.
Force majeure may be more obvious for events cancelled by government measures, but what about events in June/July/August and beyond? Can they be cancelled due to force majeure? Is the inability to market a product a force majeure [even though it is theoretically possible for the event to take place]? Does the current social and economic unrest suffice to justify the inability to perform the obligation? Does the possibility for a major festival to program only local artists, due to closed borders, counter the argument that it is impossible to put up the show?
Place your bets.
Organizers, producers and artists would do well to dust off their insurance policies for their events/tours [if applicable, of course]. Some will be happy to discover that they are covered; others, dismayed to find a list of thirty-six exclusions, including pandemics.
One thing is sure, this situation will be a wake-up call for some to update their insurance policies.
I have the immense privilege of working for both artists and event organizers… and the somber task of bearing witness to the realities of both. On the one hand, there are those who have had their summer tours cancelled; and therefore, have lost a huge part of their income for the year (if not all, in some cases). On the other, there are those who have to make the difficult decision to cancel their events, and watch all their investments of the last few months – in money, time and energy – be reduced to dust.
There is no best-case scenario.
There are no losers, if not everyone.
More than ever, the entertainment industry will have to rely on the solidarity and creativity of its players to get back on its feet quickly!
:: Translated by Emily Alberton / Photo credit : Danny Howe