Written by Principal, Jennifer Tutty
It’s been a dramatic few weeks for the Bluesfest after adding Talent Sticky Fingers to their 2023 line-up. Other artists on the bill such as Sampa the Great and King Gizzard and the Lizard Wizard have all pulled out of the festival due to Sticky Fingers being on the line-up.
As a result of all the backlash against Bluesfest, the festival has now removed Sticky Fingers from the line-up. When announcing the band’s removal from the line-up, Bluesfest director, Peter Noble, yesterday stated “Bluesfest cannot, sadly, continue to support Sticky Fingers by having them play our 2023 edition, and we apologise to those Talents, sponsors and any others we involved in this matter through our mistaken belief that forgiveness and redemption are the rock on which our society is built.
Whether you support Bluesfest, Sticky Fingers or the objecting talents’ position and whether you are for or against ‘cancel culture’, this whole debacle has raised some interesting legal questions for event promoters.
One of the critical questions that has arisen is whether event promoters (Promoters) can legally cancel artists and talent (Talent) because of pressure from the media, public or other performers? And if they do, what are the legal consequences?
So because we love a good juicy legal question here at Studio Legal, we decided to break it all down.
How Should Talent be Contracted for Events?
Firstly let’s start with some basics on artist/talent performance contracts for events.
Ideally event promoters contract Talent using well drafted talent performance agreements (Talent Performance Agreements).
Talent Performance Agreements do not have to be overly formal and ideally should be written in plain English and succinctly, so Talent can actually understand what they are signing.
The typical types of terms you could find in Talent Performance Agreements include:
– Time slot
– Flights and accommodation
– Complimentary tickets
– Cancellation terms *important*
– Talent obligations
– Default terms
– Rights to terminate
What Cancellation Terms Should Promoters Be Putting Into Their Contract?
Cancellation for Convenience:
Talent Performance Agreements will usually outline when the Promoter can legally cancel the Talent’s booking ‘for convenience’. These are ‘express’ cancellation rights which are often negotiated prior to signing. From a promoter’s perspective, you want to have as much time to cancel a booking prior to the performance date as possible to avoid penalties.
Typical cancellation provisions might look something like this:
– The Promoter can’t cancel less than 30 days from performance date and if they do, the Talent is entitled to the full fee.
– The Promoter can cancel between 60 and 30 days from performance date, and if they do, Talent can keep deposit paid for the booking.
– The Promoter can cancel more than 60 days from performance date and get full refund of any monies paid to the Talent including a deposit.
Cancellation provisions like the ones above should:
– For the avoidance of doubt, state that the Promoter’s right to terminate is in their ‘absolute and unfettered discretion’ (and they don’t need any reason to do so).
– State that the Promoter is not liable for any other loss and damage Talent might suffer in relation to a cancellation (for example, loss of income, loss of reputation and additional expenses like marketing costs).
Cancellation For Special Reasons:
There are other common ways a Promoter might be able to terminate a Talent Performance Agreement for special reasons including:
– Where the event is impacted by a force majeure events such as bad weather, natural disasters and war.
– When the event has been cancelled, postponed or restricted due to a government mandate or restriction (as happened in covid times).
– When the Talent has breached the Talent Performance Agreement and failed to fix the breach within a certain time period (the ‘cure period’).
– Where the Talent had committed a serious breach of the contract and it can’t be fixed.
– When the Talent conducts themselves in a way in relation to the Event that causes damage for the reputation of the promoter or event.
What Happens if a Promoter Fails to Comply With Contract Terms?
If the Promoter fails to follow the terms of the Talent Performance Agreement, the Talent could claim the Promoter has ‘breached the contract’ and demand compensation.
Compensation could be any lost fees and unpaid expenses, as well as consequential loss flowing from the breach of contract including loss of income, loss of reputation, out of pocket costs and more.
What Happens if a Promoter Does Not Have a Formal Talent Performance Agreement?
It becomes more tricky for a promoter to cancel Talent when there is no formal written contract, outlining the Promoter’s cancellation rights. If a Promoter casually engages Talent via a verbal contract or one that is made for example via text message, email or social media DM exchanges, no doubt clear cancellation terms have not been discussed or agreed in writing.
If a more casual contract exists, and a Promoter cancels a Talent without a pre-agreed right to do so, the Talent may argue that the Promoter is in breach of their agreement (albeit a casual one), and hold the Promoter liable for their full fee and additional losses flowing from the cancellation.
Tip For Promoters:
We recommend Promoters use written contracts (which can be prepared and exchanged via email) that clearly outline the main terms of the deal, and importantly outlines the Promoter’s cancellation rights (including the ‘common’ ones listed above).
Can a Promoter Cancel Talent From an Event Due to Public Pressure?
From our experience, most contracts, even well drafted detailed Talent Performance Agreements will not afford the Promoter an express right to cancel because members of the public, other artists on the line-up, punters or the media are against the Talent performing at the Event or if the Talent had been ‘cancelled’ by the public.
While a Promoter might seek to rely on a contractual provision to cancel the Talent where the Talent has caused damage to the reputation of the event or Promoter, or where the Talent has otherwise bought the event or Promoter into disrepute – we believe this could be challenged by the Talent or their legal team if the Talent disagrees with this or believes that they are being unfairly judged.
If no such ‘special right’ to cancel due to public pressure exists or even if one does exist, a promoter should consider utilising terms of the Talent Performance Agreement that allow the Promoter to cancel ‘for convenience’. If a more casual arrangement was entered into, the surrounding communications will need to be examined to determine whether or not, the parties agreed on any form of cancellation rights ‘for convenience’.
As outlined above, sometimes a promoter might have an express contractual right to terminate a Talent within certain time periods ‘for convenience’ (i.e. just because). The Promoter should attempt to rely and utilise these provisions to cancel Talent due to public pressure, rather than claiming the cancellation was due to public pressure or similar reason. This will help reduce the Promoter’s risk that it has breached the contract or acted unfairly.
Sometimes the Promoter may have to pay a significant payment to the Talent to cancel, especially if the event date is close. The Promoter will need to weigh up the reputational damage of leaving the Talent on the line-up vs the fee payable to the Artist to cancel.
What Can’t a Promoter Do When it Comes to Cancelling Talent Due to Public Pressure?
When considering whether to cancel Talent or making statements to the public in response to any public pressure to cancel Talent from an event line-up, the Promoter needs to be VERY careful not to engage in any:
– Defamatory conduct
– Discriminatory conduct
– Misleading and deceptive conduct
What Promoters Should Know About Defamation
What is Defamation?
Defamation occurs when defamatory matter referring to another person is published, and the defamatory publication caused or is likely to cause serious harm to that person’s reputation.
A matter will be defamatory when the meaning it conveys (directly, indirectly or by innuendo) has a tendency to lower that person (and their reputation) in the minds of ordinary members of the community.
Defamation laws are governed state by state in Australia and we do not intend to go into the differences between states in this article. It is important however to know however that common defences for defamation in Australia include:
The defendant (person who the defamation claim is brought against) proves that the defamatory statements are ‘substantially true’.
If the defendant proves that the defamatory material was an expression of their honest opinion (and not a statement of fact), which related to a matter of public interest and was based on ‘proper material’, this may be a defence.
The defendant proves that the person allegedly defamed was unlikely to suffer any harm by the publication. If this defence is raised, the court will consider the surrounding circumstances.
Although this is not technically a defence, the best way to prevent a defamation claim being brought against you is to have the permission of that person to publish the material.
Tip For Promoters:
We recommend getting your lawyer to do a pre-publication clearance on all internal and public communications regarding cancellation of Talent.
What Promoters Should Know About Discrimination
Discrimination is against the law if it happens in public (for example in relation to entertainment events).
The following characteristics are generally protected in state based discrimination acts:
– employment activity
– expunged activity
– gender identity
– industrial activity
– lawful sexual activity
– marital status
– parent and carer status
– physical features
– political belief or activity
– pregnancy or breastfeeding
– profession, trade or occupation
– religious belief or activity
– sex characteristics
– sexual orientation
– spent conviction
– personal association with someone who has, or is assumed to have one of these personal characteristics
Therefore, a Promoter can’t cancel a Talent because they have one of the protected characteristics. For example, it would be unlawful to cancel someone because they are of a certain religion.
What Should Promoters Know about Misleading and Deceptive Conduct?
The Australian Consumer Law prohibits Promoters from engaging in misleading and deceptive conduct in the course of trade and from making false statements.
Promoters therefore need to be very careful to give accurate (and not misleading) information to the stakeholders, suppliers and the public about Talent cancellation matters.
CANCELLATION OF TALENT: TOP TIPS FOR PROMOTERS
Finally, we would like to offer up our top tips for promoters on how to prepare for, and protect themselves against difficult situations that arise when Talent they book ‘get cancelled’ by other artists, the media or the public generally.
– Make sure you have a written contact with Talent.
– Make sure your Talent contract has clearly defined and express cancellation rights including the right to cancel for convenience (and without a reason) within certain time periods. Try to have the right to cancel up to 14 days before the event with a full refund provided from the Talent.
– Make sure you can immediately terminate a Talent booking if they engage in any illegal, unethical or similar behaviour either prior to or during the Term of the talent contract.
– Make sure you can immediately terminate a Talent booking if their involvement in the event damages or threatens to damage the reputation of the Event/Promoter or brings or threatens to bring the Event/Promoter into disrepute.
– When communicating internally or with the public about Talent cancellation matters, ensure that a lawyer and/or PR agent checks and clears your communications. Promoters need to ensure communications do not include any defamatory, discriminatory or misleading statements.
– Promoters cannot cancel a Talent because they have a protected characteristic (i.e. sex, race, religion) otherwise they will infringe discrimination laws.
Written by Principal, Jennifer Tutty
Published 3 March 2023
Photo of Charles Bradley, captured by photographer ‘Beaver on the Beats’.
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.