On July 14, 2020, Paul Bernstein was quoted in Variety on how the COVID-19 pandemic has reshaped entertainment law. According to the article, one of the challenges for lawyers has been negotiating the ubiquitous force majeure clause, which, in normal circumstances, relieves parties from liability in the event of an occurrence beyond anyone’s control—whether it’s a war, a crime, or a Category 5 hurricane.
In the case of a pandemic for which numbers are spiking with no established treatment or end in sight, entertainment attorneys have had to reconfigure their understanding of what force majeure entails. Bernstein says, “Everybody has had to take a hard look” at both their existing force majeure clauses and any agreement going forward.
“The tricky part,” he says, is that these clauses are ambiguous in a lot of existing contracts. “For example, take government shutdowns caused by a pandemic. Well, it used to be you had the old catch-all phrase of ‘an act of God.’ And so you might say a pandemic is an act of God. OK, maybe. But the state of California telling you that you can’t make your TV show and your movie—that’s not an act of God. That’s an act of the governor of the state of California.”
With productions slowly starting up again, and their personnel mandated to comply while on set with instructions from someone who's called “an autonomous” COVID-19 compliance officer, it will be interesting, Bernstein says, to see how this all shakes out in practice.
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