We are living in unprecedented times, while the welfare of human life comes first, the live music sector has taken a huge hit, but if a festival is cancelled who is legally liable?

• The sound of resilience can be heard across the industry, from music publishing to live music. There is no doubt that the pandemic has impacted the music industry globally. With the recent announcement that yet another festival, Boomtown, will not be opening its doors this year. For the first instalment in the 'laws of music' series, I will examine the factors that led to the cancellation of live music. 

A plea for covid-insurance

The music industry continues to plea for some recognition. Although events will have insurance in place, covid-19 is excluded from cover – regardless of the fact government bodies have introduced insurance schemes for other areas of the media and entertainment industry, including the film and television industries. As a result, more than 26% of festivals have already been cancelled, with more feared to follow suit due to the lack of a government-backed insurance schemes. 

In practice, if a festival is cancelled, it is owed no protection from legal action. Such cases could arise where performers, crews, or attendees (or all) fall ill – but who is legally liable?

Due to the assumed risk of attending live events, it will be difficult for plaintiffs to bring an action where the cause of coronavirus cannot be identified. In other words, it is difficult to establish exactly how and where transmission of the virus has occurred. While the vaccine rollout continues, the highest age population of attendees (under ’30s) are unlikely to be fully vaccinated. Therefore, the responsibility falls on event organisers and venues to comply with the rules and avoid gross negligence claims. They cannot evade responsibility to safeguard the health, safety, and wellbeing of attendees (or consumers), but equally such concerns are not a covered loss. As per liability clauses within live event contracts, attendance is at the individual’s own risk. 

Should the cancellation of live music be acceptable?

The common law reason to avoid the performance of contractual obligations (force majeure) is satisfied by the following requirements: 

• a force majeure event has taken place;
• the event has prevented, hindered, or delayed a party from fulfilling its contractual obligations; and
• a party has taken all reasonable steps to comply with procedural requirements set out in the clause to mitigate the impact of the force majeure event. 

A force majeure event (unforeseen circumstances beyond the reasonable control of the affected party) is usually set out within contracts. Given that coronavirus is still relatively new, it is unlikely that all companies will have included coronavirus in their force majeure clauses in time for the summer season. Ticket refunds and other remedies are usually available only in cases where the event cannot go ahead under exclusion clauses. If like Boomtown there is a deadline for requesting a refund, ticket holders can potentially miss out if they are unaware of their consumer rights.

The long-term impact is that attendees are waiting for a refund on tickets that have been postponed for a second successive year. Under section 56(3) of the Consumer Rights Act 2015, timing is considered to ensure that re-performance takes place within a reasonable time. Of course, this is open for judicial interpretation. Clauses in a contract usually state that artists retain any booking deposits that have been paid to them, in the event of a cancellation of live performance. That said, should events go ahead and later be postponed, the availability of funds to refund consumers and recoup losses are minimal. 

Event organisers are unwilling to take risks to hold larger live music events without government backing due to the costs involved. For example, the costs to employ and commit to non-refundable deposits will impact the future of live music. If they were to go ahead and face cancellation, they risk bankruptcy. One consideration for event organisers is that they could argue the contract has been frustrated. Under the Law Reform (Frustrated Contracts) Act 1943, event organisers can be discharged from rights and obligations under the contract. Consequently, if the court sees fit, event organisers may retain an amount that has been paid by ticket holders, in order to cover expenses. A careful review of ticket terms and conditions relating to pandemics will be necessary for all future live music events. The unpleasant reality is that after the vaccine rollout and transmission rates have subsided, there will be a rise in disputes relating to event cancellations.

Bringing back our industry

With live events set to return in late July, self-employed freelancers have had a reduced number of bookings for 2021 festivals. Due to this, freelancers are looking for surety in contracts in the early stages of booking. Some festivals have waited for the results from the pilot study to be released, to help them determine whether they will go ahead with events they have planned. For some freelancers, this is simply too late. Although the study brings positive results, freelancers may have moved to a different sector for more long-term contracts and will be unable to give reasonable notice to their current employers. This cannot be said for all, as some may breach their contracts by failing to give reasonable notice, giving rise to employment law disputes (see section 86 of the Employment Rights Act 1996). As a result of these difficulties, the pandemic weakens the opportunities for artists, the crew, organisers, promoters, to name a few.

Once upon a time, there was hope for those working in the arts industries to return to their roles – for at least the summer season. The grants provided in the context of the above are limited. As we have seen in the past year, it is clear many will lose their main source of income, along with many business closures.

Music lives on

Looking on the bright side, the trend for on-demand music and a global reach for artists continues. To remain competitive, festivals such as Glastonbury moved to an online-only event for 2021, with many festivals hosting smaller replicas such as Boom Village. It may not be the same as performing in front of a large live audience but, hopefully, this will mean the industry can get the recognition it deserves.