Who Is Ultimately Responsible for Canceling Concerts Due to COVID?

Whoever said “the show must go on” wasn’t booking bands during a pandemic. These days, following that old adage is a surefire way to make people mad.

Citing fan demand, LCD Soundsystem in December pressed on with a 20-show residency at Brooklyn Steel in New York City until they ultimately decided to cancel the last three performances over a wave of emergent COVID cases. A few days earlier, the band had promised refunds to any ticketholder who felt that going posed too great a risk. “Us playing the show is in no way an indicator that it’s safe to attend,” LCD Soundsystem wrote as part of a confusing statement posted on Twitter.

By contrast, Wilco’s Sky Blue Sky festival went off as planned Jan. 17-21 in Riviera Maya in Mexico, near Cancún, despite pressure from some fans who wanted the band or Cloud 9 Adventures, the promoter, to cancel over concerns about hosting an event of that size during the uptick in cases. Ticketholders who chose not to attend didn’t get their money back. On the bright side, the festival seems not to have resulted in a COVID outbreak, likely due at least in part to the fact that it was held outdoors and guests were required to provide proof of a negative COVID test upon arrival and departure regardless of vaccination status.

In both cases, a lot of people ended up disappointed — in bands, in promoters, in ticketing policies or with the general sense that fellow music fans are either overreacting to COVID or not taking it seriously enough. Either way, musicians have wound up in the crossfire as they try to make a living.

“I will never, ever, ever, ever give Cloud 9 another penny, and it will be hard for me to give Wilco another penny,” says Anna van Tonder, a Wilco fan from Seattle who attended the pre-pandemic incarnation of Sky Blue Sky in 2020 and loved it. This time, she and her husband bought tickets last May, after getting vaccinated and before the Delta variant took hold. They spent close to $5,000 on an all-inclusive package at the Hard Rock Hotel resort in Riviera Maya, only to stay home and take the financial hit when Omicron infection numbers soared in the weeks leading up to the festival.

One of the most frustrating things about trying to see live music, especially destination festival-style events, amid ever-fluctuating COVID numbers is the uncertainty: Is it safe? Will they cancel? Can I get my money back? Who is in charge? The answers depend a lot on context.

With Sky Blue Sky, van Tonder and other ticketholders who had second thoughts about attending were frustrated by what felt like a lack of clarity over who was responsible for what. Because the festival bears Wilco’s name, some fans initially assumed the band had final say about whether to cancel. Wilco singer Jeff Tweedy addressed fans’ dismay earlier in January on Instagram Live, saying that he understood “all of the anxiety and anger and confusion.” Despite the Wilco branding, he said, the band is “a contracted entity for this event,” and didn’t have a say in whether the show would happen. In other words, it’s Cloud 9’s festival, and they hired Wilco to play. Any decision to postpone or cancel Sky Blue Sky, or issue refunds, would have been up to Cloud 9.

“The general legal question is, does Wilco have any right, ability or liability in connection with the ticket buyers?” says Elliot Resnik, chair of entertainment at the New York law firm of Masur Griffitts Avidor. “And if they’re just a contracted act to a promoter to perform a show at a specific time in a specific place for a specific duration, they’re really not going to have any say.”

Wilco’s arrangement with Cloud 9 is not unique. Other acts whose names are on upcoming destination festivals between now and March are also essentially hired hands. Cloud 9 has events with Widespread Panic, the Avett Brothers and Brandi Carlile at Riviera Maya. A different promoter, CID Presents, has pending festivals with Luke Bryan, Dave Matthews and Tim Reynolds, Phish, My Morning Jacket and Hootie & the Blowfish, spread between Riviera Maya and another resort near Cancún. So far, as the Omicron surge seems to be nearing its peak in the U.S., those events are continuing as planned. (Wilco has another destination festival, Solid Sound, scheduled to take place in May in Western Massachusetts, but the band owns that event and is responsible for ticketing and other arrangements.)

Though none of the acts set to perform at the Mexico festivals can unilaterally scuttle them, Resnik says there are alternatives in some cases. The headline bands, he claims, have enough pull that they could negotiate with the promoters for a postponement or to refund some portion of the ticket price if holding the event seems too risky.

Once financial matters become part of the equation, though, things get complicated. Cloud 9 didn’t respond to a request for comment, but the company wrote in an email to customers earlier this month that “economic realities restrict us from offering full refunds.” They didn’t specify what those realities were, but Cloud 9 certainly wasn’t locked in to proceeding with Sky Blue Sky, or any of the other upcoming festivals. If the company had wanted to cancel any of the events on its calendar, it could have negotiated with the venue, bands or other vendors to reduce the cost.

“[Cloud 9’s] got lawyers,” one music executive says. “These are experienced people who have done this shit before, and they obviously have good legal advice. I’d be amazed if there wasn’t a way to figure out a compromise scenario where people wouldn’t have had to eat everything.”

Bands that don’t perform don’t get paid, of course, whether they’re the headliners or support acts without as much clout. The decision to cancel doesn’t just affect those with top billing; it also impacts dozens, even hundreds of people behind the scenes — smaller bands, stagehands, roadies, audio technicians, vendors — all of whom are less likely to be able to afford missing another paycheck. Almost two years into a pandemic that has shrunk touring opportunities for musicians, and therefore income for all the people whose livelihoods depend on them, no one is eager to walk away from a sizable payday — and festival gigs tend to offer bands considerably more money than they’d make anywhere else, the music executive says.

“I think two years of radically reduced income put people in a position where they’re rolling the dice on some shit that they probably wouldn’t have,” the executive says. “You can only reduce salaries and do all that stuff for so long.”

Though more tours seem to be on track so far in 2022, not every band is ready to get back onstage while Omicron is rampant. Adele last week posted a tearful video putting her Las Vegas residency on hold. The Fugees called off a string of dates to mark the 25th anniversary of their 1996 album The Score, while the Toronto punk-rockers Fucked Up pushed back their January tour dates until July. When concerts are happening as planned, though, ticketholders generally don’t have much recourse if they change their minds about going, unless they’ve spent extra money on cancel-for-any-reason trip insurance, says Leah Kunkel, an entertainment lawyer in Northampton, Mass.

“From the consumer point of view, buyer beware,” Kunkel says. “If you’re going to buy into something like that, you need to find out what their COVID policy is. And while you’re at it, what if there is an act of God, like the transportation couldn’t happen because there was a two-day storm on the East Coast, or all the flights are canceled because everyone has COVID?”

Anna van Tonder has learned the buyer-beware lesson all too well when it comes to destination festivals. “This is probably the nail in the coffin for me,” she says. “I mean, $5,000 — I work for my money. That’s not just like a whatever amount of money to toss away.”