The Rights & Obligations of Performing Artists in COVID-19
Who this resource is for: Performing Artists
Who created it: Written by Byron Pascoe (Edwards Creative Law – www.edwardslaw.ca) with input from Martha Rans. It is intended for educational use only. Byron practices law at Ottawa’s entertainment law boutique, Edwards PC, Creative Law (www.edwardslaw.ca) helping musicians, writers, and producers of series, features, digital media, and video games. © Pacific Legal Education and Outreach Society (PLEO) and Edwards Professional Corporation.
Presented by Byron Pascoe
In light of the COVID-19 outbreak, we all want to limit health risks at home and in the communities that we visit on tour. As we consider the effects of COVID-19 on the live music industry and our individual roles, here is some information on the rights and responsibilities we have related to our venues and partners. This document will also include information on the force majeure clause and how it might be invoked.
What are your rights and obligations as a performing artist related to venues you were expected to play?
Do you have a written agreement with the venue, either as a formal agreement or an email exchange?
If you were already paid a guarantee, what would give the venue the right to demand part or all of it back? If the guarantee was not paid, what would give the venue the right to withhold or reduce the payment?
Is there a cancellation policy? Does it give the venue the ability to cancel your show, without liability, a certain amount of time before the show takes place? What if the show needs to be cancelled for a reason outside of the venue’s control? For more information on Force Majeure, scroll down.
What if the venue insists on the show proceeding but you don’t want to perform due to health concerns?
If you have an agreement, some or all these considerations may have been settled.
If your shows are months away, you may want to get these and other typical venue agreement deal points straightened out, to ensure there is a clear understanding with the venues on your tour. Before you agree to the cancellation of a show, check your agreement to see if your entitlements are affected by whether you consent to the cancellation.
What are your obligations to others as a performing artist in COVID-19?
Does your agreement with your band require everyone to share expenses, even if the expected revenues are not generated? For an informative blog on band agreements, click here.
Does your agreement with your side artists allow you to cancel for any reason, including if the gig is cancelled? Are any of those agreements “pay or play” – which require you to pay your side artist whether they play or not?
If you are paying a manager a monthly consulting fee that you expected to be able to earn from touring, do you have any clauses in your agreement that protect you if the tour is cancelled? For an informative blog on management agreements, click here.
How does your arrangement with your booking agent deal with a crisis such as this?
It is preferable to formalize your arrangements with your professional partners early in the relationship, rather than later. This includes provisions that cover both the successes and what happens when things don’t go as planned.
If you decide not to insist on enforcing all of the protections in your agreement, you may want to give some of them up – to “waive” some of your rights. Before waiving rights, be sure that you aren’t unintentionally waiving other rights as well. Make sure your waiver is clearly stated and that your agreement includes a standard waiver clause that specifically allows you to waive an entitlement once, but not be required to continue waiving that entitlement in future. For example: “the failure of any party to enforce any provision of this agreement shall not be considered as a waiver or a limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement…”
What is force majeure? Can I invoke a force majeure clause as a performing artist in COVID-19?
Many may find it difficult or impossible to perform their contractual obligations given the restrictions imposed in response to the outbreak. If COVID-19 makes it impossible for you to perform your contract on time, or at all, consider invoking the force majeure clause.
In contract law, force majeure refers to events that are out of the control of the parties and that may make performance of the contract difficult or impossible. The underlying principle of a force majeure clause is that no party to a contract should be held to its obligations if performance is prevented or delayed by events that are both unforeseeable and beyond that party’s control. If you are unable to perform your contractual commitments as a result of the COVID-19 outbreak, a force majeure clause may relieve you of some or all of your obligations.
A force majeure clause typically starts with a list of specific events – for example, natural disasters, such as earthquakes, hurricanes and tsunamis as well as epidemics, quarantines and government shutdowns. If the parties clearly allocate the risk of a specified event, as an event that relieves the parties of their obligation to perform, even if it was foreseeable, it is likely to be enforced by the courts.
A force majeure clause typically ends with a general statement of the type of events (“Act of God”, “unforeseen”, “unavoidable”, etc.) that can be invoked to justify a party’s failure to perform. Even if a specific event is not listed, or the contract does not contain a force majeure clause, a court may still relieve a party of its obligations if the event was unforeseeable and beyond the party’s control.
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