Who Is Liable for a Cancelled Concert?
As a Performer or Promoter, Am I Labile For Concert Cancellations or Postponements?
A successful concert or tour can generate a huge amount of money and influence for all artists, promoters, venue owners, and cities involved. However, there are a variety of reasons why the parties may find it necessary or expedient to cancel a scheduled concert or tour.
For example, a singer may have a cold or sore throat, and fear that playing at the concert could cause further injury to his or her vocal cords. Or an artists may wish to opt out of performing at a smaller venue in order to perform at a larger one. Conversely, venue owners, as well as promoters, may decide to cancel a concert or tour because advance ticket sales are very slow and they would lose money if the show(s) went ahead. Even government officials may decide to cancel a concert because of the probability that it will lead to serious rioting or violence. This article aims to help promoters and performers cover their assets.
When are the Performer or Promoter on the Hook for Canceling a Show?
When one party cancels a concert, the other parties often lose out. For example, when an artist cancels a performance, the promoter often loses out because he or she spent lots of money upfront for advertising, ticket sales, and venue arrangements, even during the early stages of the concert promotion. Conversely, when the promoter cancels a show late, the performer often cannot get another gig and will end up losing the opportunity to perform elsewhere. Furthermore, there may be damage to the reputation of both the performer and the promoter where concerts are canceled. As such, with or without a formal written contract, various types of claims can be brought against the canceling parties.
Generally, the primary inquiry is whether the canceling parties’ actions were “reasonable” in light of the circumstances. For example, a court found that a performer had unjustifiably cancelled or postponed a concert, breached her contract and had to pay all of the venues costs where the performer refused to perform because the stage was “inadequate.” Similarly, there is case law showing that, in the context of a promoter’s claims against a performer for canceling or postponing a concert, an action could be brought for breach of an implied covenant of good faith, fair dealing, and cooperation between the parties if the performer willfully misrepresented a material term of their agreement. Similarly, some courts have found that liability of the performer or his or her agent for canceling a concert based on claims of fraud or misrepresentation.
Liability may be found where third parties intentionally interfere with the contractual relations of a performer and a promoter. For example, a court found that a performer was liable for all of a promoter’s costs where the performer’s entourage, knowing that the promoter’s lease gave the promoter an economic advantage, informed the venue that the performer would not perform.
On the other hand, many courts have considered the availability of defenses to a promoter’s claims against a performer and his entourage for canceling or postponing a concert. For example, performers have raised defenses based on a contract clause allowing cancellation for the performer’s illness or based on a clause excusing nonperformance due to a cause beyond a party’s control.
Liability For Loses Arising From Ticket-Selling Organization & Venue Owner’s Breach
Beyond the promoter-performer relationship, potential liability of a ticket-selling organization for a canceled concert may arise “based on claims such as that the organization did such a poor job of promoting and selling tickets that the other parties had no choice but to cancel the concert, or that the organization did not announce the concert’s cancellation even after it knew that the talent could not perform.”
Even when a venue could not receive the proper permits to host a concert, it may face a breach of contract claim from both the promoter and performers. For example, where a proposed or scheduled concert was postponed or cancelled due to failure to obtain the necessary permits, a court found that the venues actions were reasonable and justifiable partly because, “the denial of the ‘special’ permit was an unforeseeable and unusual contingency so as to give rise to the defense of supervening illegality and to excuse the breach of the original contract.”
Government’s Liability For Losses Arising Out Breach
Many cases have considered the local government’s liability breach of contract for either directly canceling a concert or for indirectly doing so by refusing to issue the necessary permits. However, where a proposed or scheduled concert was postponed or cancelled solely on the basis on a concert’s genre or music theme, courts have found First Amendment and Equal Protection Violations.
Ways to Avoid Liability For Breach
As a performer or promoter, it’s your responsibility to cover your own assets by making your intentions clear, writing them down, and ensuring that all the parties consent to the terms. Parties can contractually agree to limit their liability.
If you’re a promoter and are worried that a show may not sell enough tickets, negotiate and include terms in the contract that will allow you to cancel the show if you don’t sell enough tickets within a reasonable amount of time. Make sure to include an “Illness” or an “Act of God” provision in your contract that will get you off the hook in the event of unforeseen circumstances that bar you from performing. If you’re worried that the venue won’t be able to procure the necessary permits, write up a clause that absolves you of liability in such an event.
Otherwise, the breaching party’s liability turns on whether or not their actions were “reasonable” in light of the circumstances. While a performer’s illness and certain events beyond the parties’ control may likely be deemed reasonable or justifiable, cancellations driven by profit motivations are often deemed unreasonable.
 Click Entertainment, Inc. v. JYP Entertainment Co., Ltd., 2009 WL 485498 (D. Haw. 2009).
 DiCesare-Engler Productions, Inc. v. Mainman Ltd., 81 F.R.D. 703 (W.D. Pa. 1979).
 Jay M. Zitter, Liability Arising from Postponement or Cancellation of Concert, 42 A.L.R.6th 1, 8.
 Zitter, at 12 (citing Benjay v. Sports Arena, Inc., 1979 WL 207075 (Ohio Ct. App. 6th Dist. Lucas County 1979)).
 Contemporary Music Group, Inc. v. Chicago Park Dist., 343 F. Supp. 505 (N.D. Ill. 1972).
 East Meadow Community Concerts Ass’n v. Board of Ed. of Union Free School Dist. No. 3, Nassau County, 19 N.Y.2d 605, 278 N.Y.S.2d 393, 224 N.E.2d 888 (1967); Contemporary Music, 343 F. Supp. 505 (N.D. Ill. 1972); McClure v. Biesenbach, 402 F. Supp. 2d 753 (W.D. Tex. 2005),
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