The Band That Stood Up To God…and Lost

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

We recently has a situation where one of our groups showed up at a festival, but just before they were to go on stage, the police shut down the event due to an approaching electrical storm. The presenter had given the group a deposit for 50% prior to the event, but is refusing to pay the balance even though our booking agreements have a specific clause that says that, in the event of cancellation, except for Acts of God, the artist gets the full fee. The presenter signed the agreement. The band showed up and were ready, willing and able to perform. Aren’t they entitled to the full fee? They need this money to cover their costs for flying, driving, and internal costs. Isn’t the presenter supposed to get event insurance to cover these sorts of things?

When you say the band was “ready, willing and able to perform”, are you saying that, had the police not shut down the event, they would have performed anyway? In a lightning storm? Seriously? While I am solidly rooted in the “show must go on” tradition, you’re either representing the industry’s most desperate band or the most reckless—or both. Had lightning struck the stage, injuring either a band member or a member of the audience, the band would have been facing some significant lawsuits and liability for gross negligence.

An “Act of God” is an unexpected event or occurrence that is beyond the control of a party. If a party breaches a contract because of an “Act of God”, then the party is not liable. Concerts cancelled due to severe weather are among the most common “Acts of God.” The fact that, in this case, the police shut down the event as opposed to the actual hand of the almighty descending from the clouds and cancelling the event with a host of celestial trumpets does not change the fact that the presenter did not cause the lightning storm and had no choice but to cancel the event—literally, given that the police ordered the event to be closed. Thus, the presenter is not liable for the cancellation and the band is not entitled to the full fee. In fact, assuming the presenter let the band keep its 50% deposit, the band actually got more than it was entitled to.

As for whether or not the presenter was supposed to get event insurance to cover weather related cancellations, you seem to be under the impression that, had the presenter obtained such insurance, then the band would have been paid its full fee. Not necessarily. Unless your contract obligated the presenter to purchase an insurance policy and name the band as an additional insured, then the presenter’s event cancellation insurance policy would only have covered the presenter’s liabilities and expenses. As the presenter isn’t liable to pay the band its full fee, the insurance policy wouldn’t have paid it either. On the contrary, if the band regularly plays outdoor events and concerts, and wants to “ensure” that it losses are covered in the event a concert is cancelled to due weather, then the band should consider getting its own event cancellation insurance policy. Or you could always just pray.


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