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PAIL® Solicitors is a specialist niche digital media law firm specialising in drafting bespoke media and entertainment contracts. To obtain an accurate, personal quotation please complete the above form or contact us at (020) 7305-7491 or at support@pailsolicitors.co.uk we would be delighted to assist you.

What is Media and Entertainment Law?

Sports, media or entertainment events will often require models, performing artists, bands, team captains, players, and light and sound engineers. Media and entertainment law is the law that relates to the contracts or disputes that arise from these requirements.

What are the issues that arise?

Usually, the performers and critical personnel must fly in from abroad. What happens if airlines cancel flights? What about hotels shutting down when you’ve booked rooms for artists? Businesses and venues will need to shut down during the pandemic. See UK government guidance for business and venue closure. The event venue will need to be booked well in advance. Often large non-refundable deposits are paid at the time of the booking. 

Issues like health and safety, arranging insurance for the event, ensuring event security will need to be considered and more.

So what are the key considerations and implications for businesses in the media and entertainment sectors when negotiating and drafting contracts?

The Contract

The concept of a contract within its legal definition is sometimes challenging to understand. The law is concerned with a meeting of the minds.  But what does the meeting of the minds or consensus ad idem mean?  “Idem” in its literal translation, means “the same”. At that moment in time, the parties struck a deal and agreed. The intention of the parties when they struck the bargain is of utmost importance. This legal interpretation is a shrewd commercial definition of an agreement. The law takes into consideration that once a deal is agreed, one of the parties may opportunistically change their minds. In commerce, allowing parties to change their minds without good reason would be unfair and would stifle the free flow of business. 

For the reasons above, there is no need for a contract to be in writing. Once parties have struck a deal even orally then that agreement is binding. Even where there is no payment, and documents are unsigned, a contract could still exist. In Reveille Independent LLC v Anotech International (UK) Limited (2016)  the court of appeal dismissed an appeal by Anotech agreeing that there was a binding contract based on the conduct of the parties. Antioch had paid monies, and the email correspondence indicated an agreement by conduct. The earlier cases, including Bryen & Langley Ltd v Boston [2005] EWCA Civ 973 also support this interpretation of the law.

On many occasions in the entertainment world, the parties are negotiating the Artist Booking Agreement, Deal Memo or Venue Booking Agreement and arrive at a deal. However, there may be further issues that one party is concerned has not been discussed which are not in the main master agreement or the riders. It is therefore of crucial importance when negotiating contracts to make sure that you head all correspondence as subject to agreement and that you indicate offer terms are accepted subject to receiving clarification on further issues. Once you have established whether there is a contract, then you need to check the written clauses of the agreement. T

One of the important clauses in the contract is whether there is a Force Majeure clause. 

Force Majeure

If the contract has a Force Majeure clause, then you follow the procedure set out in that clause to deal with the impact of a significant event on the obligations of the parties in the contract. However, often in media and entertainment commercial contracts, there are no Force Majeure clauses, or they are short form clauses due to the pressure to keep media contracts short. Unfortunately, like all issues addressed by boilerplate contractual provisions, they are never critical until they are essential.

There is also the fact that many companies write their commercial contracts or download templates online without using qualified legal expertise.

If there is no Force Majeure clause, the next step is to try to add a Force Majeure agreement to the primary contract. A thorough commercial contract will include a boilerplate “Amendment/Variation” clause. The variation clause provides the steps to take when the parties want to amend or vary the underlying agreement with additional terms. The parties should follow the steps meticulously with the proposed Force Majeure agreement.

If there is no Amendment/Variation clause, then you need to take steps to clarify the issue of a Force Majeure event by incorporating a Force Majeure clause into the main contract without the guidance of an Amendment/Variation clause. 

You can add the Force Majeure clause to the first agreement by way of a side letter agreement. You should write to the other party explaining the need for a deal on the impact of the Force Majeure event. The whole point of a Force Majeure agreement is to protect the parties from a breach of contract claim if they are unable to perform their obligations because of an event. If one of the parties refuses to negotiate Force Majeure contract terms, then the other party could refuse to perform its obligation terminating the underlying agreement. However, there is a risk of an anticipatory repudiatory breach of contract claim.

Frustration

The law also allows a party to sue for the frustration of contract. The Law Reform (Frustrated Contracts) Act 1943 (see. BP Exploration (Libya) Ltd v Hunt (No2) 1 WLR 783) governs claims for restitution arising where a contract is cancelled due to frustration. However, frustration claims are challenging to prove and are not advisable.

Consumer Refunds

Consumers will be entitled to ticket refunds if they cannot use the service because of Government public health measures or event management companies decide to cancel the event. Businesses should let consumers know that they are either moving the event to 2021 and that their tickets will be valid or that the event is cancelled. If consumers request a refund, you must return consumer money for the tickets.

The governing law here includes The Consumer Rights Act 2015.

Business Refunds

Whether businesses will also need to be refunded will depend on your terms of business with them. Ensure that your terms and conditions deal adequately with business refunds.