Festivals: Terms and conditions to watch out for

John Robinson, ISM’s Head of Compliance & Legal, provides a reminder of some things to think about in order to make sure you and your employers are well prepared for any eventuality

Above: John Robinson, ISM Head of Compliance & Legal

Photo: Emile Holba

Read our next feature for the performers’ perspective on returning to festivals With the prospect of live performances with audiences once again in sight, it is a good time to consider some points to watch for if you are getting offers for work or negotiating contracts. In this feature we take a look at some issues that may affect musicians who are contemplating performing at a festival.

Your contract: make sure you understand what it means

While we are all looking forward to live music resuming fully with audiences, it is still important to make sure that any contract you have been offered deals clearly with what happens if the event has to be cancelled as a result of a change in guidance from the government about COVID-19.

Will the promoter try to argue that the contract is ‘frustrated’? If so, what are the provisions for your getting paid? Can you be paid for any preparation you have undertaken? What happens if you have already incurred costs (eg already paid for or placed deposits for transport, equipment hire, additional musicians, dancers, etc)?

Your contract may contain a force majeure clause. This could have a number of effects depending on the way that it is drafted. These can include the option to rearrange the contract for a later date, but you must be careful to make sure that these do not conflict with any other existing commitment you may have made.

What happens if you unable to agree to a suggested new date because of existing commitments? These are matters which ideally will be discussed and agreed in advance.

Clauses relating to cancellations and alternative dates can be complicated and drafted in a way which makes them difficult to understand, so we would advise you to check with our legal team if you are in any doubt as to the likely effect of the new contract you have been offered. These sorts of considerations apply quite separately from the exceptional circumstances currently arising in relation to coronavirus: cancellation arrangements should always be clear in any contract that you sign, and you should always understand what will happen if for whatever reason the booking cannot proceed, or if you are unable to fulfil your obligations because of illness or other personal emergency.

Practical details

Your contract should also be clear about a number of practical details that are relevant when performing at a festival, including: • date, time and duration of your performance.

Can the promoter change the time of your performance without your agreement? Check this. • transport – who is responsible for getting you to the festival site, and from the performance space to any agreed accommodation? Will you pay for this or will the promoter? • arrival and access – when can you arrive and what are the arrangements for access, passes, parking? How far is the stage from your parking or accommodation? If you have any particular access needs, agree these in advance and get them in writing. • soundcheck – what time, and how long? • equipment – will you be sharing equipment with other performers? Are there provisions to ensure

COVID-safety? • accommodation – how will this be arranged, and who will pay for it? • food and subsistence – make sure you understand what provisions are in place for keeping you properly fed and watered while you are performing at the festival. If you have any particular dietary needs, you will need to let caterers or others responsible for providing food know well in advance. • technical requirements – your set-up may well require you to work closely with the festival’s technical teams. We have prepared a ‘how-to’ guide for members for setting up a technical rider that you can issue as part of your arrangements with the festival.

• marketing – you should agree with the festival promoter and the marketing team what marketing is going to be done for your appearance at the festival. You should also check how this will be paid for. Also check what obligations may be required of you: are you obliged to promote the event on your social media channels? • merchandise – are you allowed to bring in your own merchandise (eg CDs and vinyls, T-shirts and other memorabilia, etc)? Will the promoter expect to receive a commission on your sales? Will this be the case, even if you are not being paid for your appearance? These details should be clarified in your contract. • insurances – the festival should have proper insurance: if you are in doubt, ask to see insurance policies and certificates. It is also likely that you will need to show that you have your own public liability insurance: ISM members have £10m PLI included as a benefit of membership and can download the current policy documents from our website. Working safely: COVID-19 risk assessments

Make sure the promoter gives you full details of how it intends to implement COVID-safe working practices at the festival. Ask to see a copy of its risk assessment – and make sure that you are given any instructions you and your colleagues are obliged to follow as early as possible, so you can understand the impact on your work and make any changes to ensure that you are following the requirements of the risk assessment.

Make sure you undertake your own COVID risk assessment: the four national governments of the UK have issued guidance for performing arts which you may find useful.

Any questions?

ISM members can contact our Legal Team legal@ ism.org with any questions or concerns about their contracts. Please also see our How to… play at a festival guide (ism.org\advice-centre\play-atfestival) for further reading. See: ism.org\ images\files\ How-to-Prepare-atechnical-rider.pdf

See: ism.org/advice/ public-employersand-productliability-insurancedocuments