In 2017, a stage diver landed on a man’s head at a punk music festival in New Jersey. That man, who experienced significant spinal damage, successfully sued the show’s organizer for $2 million.
Will we see an explosion in these types of liability lawsuits in the coming months, as music festivals come roaring back around the world, bringing an increased risk of Covid-19 cases with them?
The answer is largely not — because festivals have preempted such scenarios. New coronavirus-specific liability clauses are springing up on most large-scale festival websites that suggest you’d be wasting your time, energy, and money lawyering up if you contracted Covid-19 at a show. Take Bonnaroo’s statement, for example. While the four-day, Tennessean extravaganza planned for September says its team has “taken enhanced health and safety measures for you, our artists and employees,” festival-goers must still “follow all posted instructions” while on site, and, most importantly: “By attending Bonnaroo Music & Arts Festival, you voluntarily assume all risks related to exposure to Covid-19.”
“You’re going to see this specific language pop up everywhere,” Audrey Benoualid, music attorney and partner at Myman Greenspan Fox Rosenberg Mobasser Younger & Light LLP, tells Rolling Stone. “It’s in all the agreements we’re doing just generally now.”
Language similar to Bonnaroo’s can be found on the website for San Francisco festival Outside Lands, due to take place in October. But at press time, Milwaukee competitor Summerfest and Southern California’s Coachella did not have a clause specific to Covid-19 on their websites.
When asked why, a Summerfest organizer responded that the event’s “materials, including the website, will be updated as we get closer to the opening of Summerfest 2021,” which is scheduled for September. Representatives for Coachella, which is currently slated for 2022, did not immediately reply to request for comment.
The Summerfest representative said that new phrasing has already been added on its admission tickets. A Summerfest ticket reviewed by Rolling Stone tells the would-be attendee within its terms of service that “by holding this ticket, you agree to assume all risks associated with Covid-19 and other infectious and/or communicable diseases, viruses, bacteria, or illnesses, as well as agree to all other terms set forth at www.summerfest.com and posted at all entrances.”
Summerfest is also affiliated with Ticketmaster, the ticketing company owned by Live Nation, which has taken a wordy, seemingly ironclad approach on its own website. Live Nation tells fans: “You assume all risks, hazards, and dangers arising from or relating in any way to the risk of contracting a communicable disease or illness — including, without limitation, exposure to Covid-19 or any other bacteria, virus, or other pathogen capable of causing a communicable disease or illness, whether that exposure occurs before, during, or after the event, and regardless of how caused or contracted — and you hereby waive any and all claims and potential claims against Ticketmaster, Live Nation, and the Event Organizer (as defined in our Purchase Policy) — and against any companies affiliated with Ticketmaster, Live Nation, or the Event Organizer — relating to such risks, hazards, and dangers.”
Benoualid notes that “as much as people can put in clauses or language to absolve themselves of liability, I don’t think you can fully contract around gross negligence.” If a festival does not comply with guidelines as they evolve, for instance, it could still find itself on the hook for audience members contracting Covid-19.
“But the burden of proof is going to be next to impossible because contact-tracing isn’t that specific or detailed right now,” says Benoualid, adding that the suing concert-goer would have to prove that their Covid-19 illness was a direct result of the festival’s negligence. A hypothetical scenario could look like this: If the government is still imposing a mask mandate but no one at the festival wears a mask, its organizers may face liability for it turning into a super-spreader event.
Festivals’ protective language around Covid isn’t unique to their attendees, either: Benoualid works on contracts for artist clients, who are facing their own set of tightened rules. “There have always been force majeure provisions throughout most transactions, but nobody focused on them ever,” she says. “Now, everyone’s on high alert and we’re getting creative about what we require.”
In a recent non-festival performance contract she worked on, Benoualid says the force majeure provision — which usually supplies standard, vague language protecting events from liability around natural disasters — had to be specifically hashed out. “We have to negotiate: Do [the artists] keep half of the fee or 75 percent of the fee? Do they get reimbursed for costs that come out of pocket? That becomes a fight now. Because nobody can be insured for it, everyone is even more concerned by the costs with no policy to cover them.”
Some in the industry have begun to argue that Covid-19 shouldn’t fall within the force majeure category, since the more-than-a-year-long pandemic is not an unforeseeable event like a flash flood. “We fight about that,” Benoualid says. “Sometimes we’re able to say, ‘Covid as of the date of this agreement and its current status.’ If a new government order comes out that actually restricts you from doing something, then that would constitute force majeure. But if it’s the person feeling uncomfortable, and it’s not government-mandated, then that wouldn’t be force majeure.”
In short: The Covid liability around large events like festivals is complicated and still-shifting, but organizers will fight hard to keep it off of their books. “They’re going to do everything that they can in writing to absolve themselves to the extent that is legal to do so,” Benoualid says. So if you’re thinking about heading to a festival in 2021, your best bet is to think twice about excessive spit-swapping behavior and take all the safety precautions you can — because no fest wants to pony up for any Covid medical bills. (Hey, at least bogarting a joint has never been more socially acceptable.)