John Malone, chairman for Liberty Media, has been vocal with his optimistic opinions about the live events businesses and how he believes there will be a high demand for live performances in a post COVID-19 world. In articles on the Hollywood Reporter  and Deadline , Malone points out that Live Nation, which Liberty Media holds stock in, has seen refund requests from less than 10% of its ticketholders. It should be noted that the pending litigation  on the refund policy for Ticketmaster and Live Nation may be influencing these numbers. Though optimism is always welcome in hard times such as these, concerns still exist as to how live events are going to safely, and legally, reopen. Live Nation CEO Michael Rapino has suggested experimental reopening in smaller venues and working up to larger events, but details have yet to be discussed. To help guide the reopening discussion, below are some legally relevant considerations that live media companies should keep in mind.
Track the reopening plans of the film and television industries. The current date to allow production in California is June 12 , but approval is still subject to the discretion of county public health officials. If a lawsuit were to arise stemming from a COVID-19 related incident at a live event, a court will be heavily focused on the ‘reasonableness’ of the actions taken. Was it reasonable to have hand sanitizer available on entry and exit? Was it reasonable to reduce ticket sales so allow for more social distancing? Was it reasonable to require patrons to wear masks? Because we have yet to see many legal decisions as to what is ‘reasonable’ in a national pandemic, a court will likely take cues from similar, related industries to determine what is the appropriate standard. A major reference for a court will be the guidelines  that the Industry-Wide Labor Management Safety Committee Task Force created and submitted to governors. These guidelines were suggestions to the governors on safe production practices including online meetings and writers’ rooms when possible, staggered mealtimes with no buffet style meals, and a reduction of crowd or street-set scenes. These guidelines do not specifically pertain to the live events space, but they will give insight to both media companies and courts as to what the industry is developing as a reasonable standard of dealing with COVID-19.
Find effective ways to shift liability. Legal discussion has already arisen around a disclaimer on the Disney website  informing park-goers that COVID-19 is a constant risk and by patrons entering the park, they assume the risks of COVID-19 exposure. If this is an effective way to disclaim liability, then it is a cheap solution, but patrons may be concerned that companies have no incentive to keep them safe. If this is not effective, why make the disclaimer at all? Under California law, it is unlikely that this kind of disclaimer would fully protect against liability because it’s difficult to prove that someone saw the disclaimer and knew they assumed the risk of COVID-19 exposure by going to the event. Though it may not be fully effective, California is a comparative fault state.
There is no doubt that a delicate balance exists for the media companies between economic security and patron confidence. Companies may be tempted to look for ways to disclaim liability and skimp on safety requirements, but this will cause patrons to stay away due to safety concerns. Alternatively, such extensive safety measures could be implemented that funds quickly run dry and patrons still won’t enjoy the experience. With hard decisions to be made about reopening, the best way to legally protect yourself and your company is to keep close tabs on what COVID-19 responses are gaining traction in similar industries and follow those trends.
Samantha Doyle is a rising second-year law student at Loyola Law School where she is part of the Entertainment Law Fellowship and a board member for the Women In Entertainment Law Society.