May the Force Majeure Be With You: Negotiating Force Majeure in a Live Performance Contract

The force majeure clause in a contract is when terms and conditions start to get biblical. There are references to “acts of God,” floods, fires, plagues, and other catastrophes. These are the events the parties agree are reasonably unforeseeable, unavoidable, and outside of their control. If a party cannot fulfill their contractual obligations due to a force majeure event (from the French meaning “superior force”), that party is not liable to the other for the default. While many of these disastrous events seem farfetched, 2020 taught us that sometimes the unexpected does in fact happen.

Now that performing artists are back on the road and booking shows and tours, what do modern force majeure provisions look like? Below is a high-level analysis of the key points of negotiation between artists, agents, venues, and promoters.

Avoid Ambiguity

Force majeure clauses differ from contract to contract, and courts tend to interpret them narrowly, enforcing a provision only if it “specifically includes the event that actually prevents a party’s performance.”¹ This is why COVID-19 had lawyers rushing to add things like “epidemic, pandemic, public health emergency” to their boilerplate if it was not there already. Parties relying on the catchall “acts of God” for COVID-related claims were faced with legal ambiguity. Theological questions aside, is it truly an “act of God” if your event is canceled due to a government restriction? What if a party cannot fulfill its obligations because the hardships of COVID impacted their bottom line — does that excuse them from payment?² Courts that strictly interpret “acts of God” to mean occurrences caused directly and exclusively by nature, without human intervention, might say no. Even if you explicitly list “pandemic” as an example force majeure event, at what point are the consequences no longer unforeseeable? With COVID, we saw this answer fluctuate as lockdowns went from unprecedented, to predictable, and back to unlikely again. Even in 2023, you will still find COVID-19 language in performance contracts, either in the force majeure section, as its own sub-clause, or in a separate COVID rider. Regardless, the pandemic elevated the force majeure clause across the entertainment industry and underscored the importance of precise drafting.

Define the Scope

In addition to crafting clear, comprehensive language, contracting parties must agree on the full scope of events triggering force majeure. For example, an artist’s contract might include in its definition of force majeure:

“ . . . disability or illness or injury or death to Artist or its crew member, family member or close personal friend.”

While the emotional toll of having a friend who is sick or injured may make performing difficult, it is certainly not impossible, and venues might find this scope too broad and subjective — especially if the provision entitles the artist to retain any advance payments following a force majeure event. Instead, the promoter could narrow it down as follows:

“ . . . illness of Artist or death or life-threatening illness of an immediate family member of Artist.”

Live performance agreements are one of the few service contracts that allow for personal grievances to excuse default — you would not see the same in a maintenance agreement or a consultant’s contract. But even professional empathy has its limits, and the scope of force majeure will depend on the parties’ risk tolerance and bargaining power.

Follow the Money

The second part of a force majeure provision details the effects of such termination. As you might expect, the artist will want to keep as much money as possible, and venues will attempt to mitigate losses. Artist-friendly language will allow the performer to retain advance deposits and may even seek reimbursement for sunk costs such as travel and accommodations. Venue/promoter paper will request a prompt return of any advance fees paid and stipulate that each party be responsible for its own respective expenses. If a force majeure event takes place after the performance has started, some agreements allow for artists to receive a pro rata portion of their full guarantee for services rendered.

Ready, Willing, and Able

It is market for performance contracts to contain a caveat for circumstances in which the artist is “ready, willing, and able” to perform but for the force majeure event. For example:

“Notwithstanding the foregoing, if Artist is ready and willing to perform, Purchaser will pay Artist the full amount of the guarantee set forth in this Agreement.”

Venues will seek to limit this language and may require an artist to be not only ready and willing, but present at the venue, to receive their full guarantee. Others may only agree to full payment if the engagement is rescheduled. The venue’s flexibility here will be dependent on their ticket reimbursement policy and/or insurance coverage.

Rain or Shine?

Another caveat to force majeure events is the treatment of inclement weather. While some agency boilerplate includes “inclement weather” in their laundry list of force majeure events, others explicitly exclude it. If an event is “rain or shine” and ticket holders are not entitled to a refund, an argument can be made that the venue should pay the artist the full guarantee. The venue should consider their insurance policy as well, as many do not consider adverse weather to rise to the level of “force majeure” except for in extreme circumstances, such as a hurricane. Most artist paper will specify that the artist shall have the exclusive right to determine if weather conditions render the performance impossible, hazardous, or unsafe, in their sole discretion. Venues and promoters will likely want a say in that decision and, at minimum, some obligation from the artist that the call will be made in good faith.

Conclusion

Force majeure has always been an important, if overlooked, concept in performance agreements.  In the post-COVID era, it is even more heavily negotiated than ever. While the final agreement will ultimately be influenced by the leverage and bargaining power of the parties, prudence requires careful consideration of force majeure terms. In an increasingly unpredictable world filled with everything from bomb cyclones and international health emergencies, to labor strikes and gun-carry laws, effective contract drafting means learning to anticipate the unanticipated. To borrow a phrase from Mel Brooks, “Hope for the best, but expect the worst.”

[1] See, e.g., Reade v. Stoneybrook Realty, LLC, 63 A.D.3d 433, 434 (2009) (citing Kel Kim Corp. v. Central Mkts., 70 N.Y.2d 900 (1987)).

[2] See, e.g., Future St. Ltd. v. Big Belly Solar, LLC, 2020 WL 4431764 (D. Mass. July 31, 2020).