Jared Brenner’s latest Forbes article, “Surviving Coachella: Why Artist Safety Is A Contractual Negotiation,” examines the significance of festival and touring agreements and how, without proper considerations, artists could be held liable for circumstances beyond their control.
In the article, Jared shares that under California law, festival promoters owe the duty of reasonable care to protect their attendees from foreseeable risks. While promoters owe this duty, Jared highlights that an artist's contract should strictly state which parties exercise control over specific venue operations. For example, Jared writes, “If an artist steps to the mic and realizes the crowd pressure is unsafe, pulling the plug cannot be a debate. It must be a predefined contractual right.”
As artists perform in outdoor venues and amid changing weather conditions, Jared underscores the essential contract terms needed to ensure artist safety. He writes that artists' contracts should have “a tiered, objective response protocol coded directly into your Force Majeure or Safety clause,” with “quantifiable metrics.” Jared provides insight into how to create straightforward protocols in agreements, such as stating the show stops immediately “if lightning strikes within at least 8 miles, or if sustained winds hit 40 mph,” rather than noting the artists will not perform in “bad weather.”
Additionally, he notes that artists must possess the unilateral right to end the show to take the “judgment call” out of the promoter's hands if conditions become unsafe, meaning, “the artist’s camp, not just the local fire marshal, can pull the plug on the performance if security conditions breach the agreed-upon standards, without forfeiting their guarantee.”
Jared concludes the piece by conveying how artists can protect themselves from indemnification through their contracts by containing “reciprocal, iron-clad indemnification clauses.” He states that while artists cannot prevent lawsuits, they can dictate who pays.
