Festivals Without Borders

UNDERSTANDING THE EFFECTS OF COVID-19 ON CONTRACTUAL ARTIST COMMITMENTS

Given the cancellations and closures consequent on world-wide measures to stop the spread of COVID-19, artists and festivals everywhere are feeling the effects on their operations and livelihoods, effects which include loss of income, expenses incurred in promotion, travel and accommodation which may not be able to be recovered, and uncertainty as to their future.

This article will consider how best to cope with contractual commitments when an event is cancelled and what can be done in fairness to everyone involved.

Any closure or cancellation caused by COVID-19 falls under the provision of force majeure in any contract. Check your contract for termination and/or force majeure specifics. In general, you are not obligated to fulfil the contract (artist) or honor the contract (festival) in this situation and, as long as there has been no action taken in regard to the contract (no deposit, no travel booking, etc.) then you are under no obligation to complete the contract.

For many festivals, the decision was taken to postpone the event for a year and possibly retain any contractual arrangements which had been made. All of the clauses in the contract were maintained, including any advance payments made or to be made, and the artists would perform at the festival the following year.

For some festivals, the event was cancelled, including any contractual arrangements which had been finalized. This meant that advances which were paid would be required to be re-paid and that the artists had effectively lost work which they had been counting on for their livelihood.

How should such a cancellation be resolved? First of all, the terms of the contract should be revisited to see what exactly the responsibilities of both parties are in the event of a cancellation. Does the contract contain a force majeur clause which can be implemented? Does the festival have an insurance policy which can cover this situation in terms of any losses incurred, or any commitments which have to be honored in the contract?

If you are facing cancellations or closures for a booking where you have received or given a deposit and where travel booking has taken place, then the parties to the contract should talk about the possibilities for the return of all or part of the deposit, and how to handle expenses already incurred. Try to accept fair responsibility for the consequences of the situation for all parties involved.

Secondly, the festival and the artists should work together to see if there is a possibility of re-booking the artist for a future date. If there is an economic consideration, in that the festival will have loss of income and/or reduced income moving forward, then discussions might focus on re-negotiating the terms of the booking contract and both sides should be prepared to negotiate in good faith, recognizing the realities of the impact of COVID-19 on both the festival and the artist.

The realities for festivals and artists are particularly daunting. Many festivals have seen their budgets severely impacted by the cancellations and closures and may not have the resources to recover from a cancelled event. Staff has had to be laid off or have their salaries reduced significantly if the organization is to survive. Uncertainty as to the long-lasting effects of COVID-19 or what the reality of social interactions will be make planning for the future mere speculation at this point.

For artists, the reality is that many of them have had to seek other employment, if possible, to survive, since their main source of income, live performance, has been completely curtailed. They may be able to eke out a living utilizing other sources of income but those are usually not enough. And those who do survive will be facing a much-altered world of performance. There will be fewer opportunities and fewer resources to fund performances at current levels.

The good news is that arts organizations and governments at all levels are doing their best to recognize the plight of the performing arts and are taking steps to provide bridge financing in many forms to allow festivals and artists to be able to continue once the current pandemic has run its course. The most important thing to remember is that we are all working towards the same goal: to entertain people and enrich their lives through the arts and to do that we must support and respect each other. Stay safe and take care.

About the Author:

Robert Baird is President of BAM! Baird Artists Management Consulting in Toronto, Canada and an acknowledged expert in international touring including visas, withholding and taxation. He offers free advice to artists, agents, managers and venues and has an international clientele. He served for many years on the Executive Board of Festivals and Events Ontario (FEO) and is a former Vice-President of that organization. He can be reached at: P: 1-800-867-3281 E: robert@bairdartists.com or for more information go to: www.bairdartists.com

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