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Author Archives: Gordon Firemark

A new look at the old standard: “Force Majeure” clauses

With Covid-19/Coronavirus causing cancellation of events and transactions around the globe, people are naturally looking at whether they must still perform their contractual obligations and whether they are entitled to refunds of deposits and advance payments they've made.

Most contracts do include a so-called “force majeure” clause as part of what's usually considered the boilerplate. Contract language that's fairly universal and non-negotiatiable. But these clauses are so rarely examined carefully, many of us just assume that events like the current pandemic are covered. Unfortunately, that's not always the case.

What is “force majeure”?

A force majeure clause (the term is French for “superior force”) is a contract provision that allows a party to suspend or terminate performance of its obligations when certain circumstances beyond their control suddenly occur, and thus make that party's performance either inadvisable, impractical, impossible, or even illegal.

The question of whether such a clause applies to a certain situation depends on a careful reading of the precise language of the clause, as well as evidence that the event was (a) unforeseeable, (b) beyond the party's control, (c) not the party's fault or responsibility, and (d) actually severe enough to render performance difficult or impossible.

What's covered?

Most force majeure clauses include a list of events that are agreed to be a basis for excuse of performance. Things like “acts of God” (which may include things like fire, flood, earthquakes, hurricanes, etc.), war, riots, strikes, and governmental actions.

When interpreting these kinds of provisions, Courts typically take a fairly narrow approach to construction of things, keeping the scope limited to things of a like kind (following a doctrine known as edjusdem generis. So, unless your clause actually includes reference to “epidemic”, “pandemic” or similar, such an event probably will not be deemed to provide an excuse for performance.

But check things carefully. In the current scenario, governments are taking action to control the disease by limiting public gatherings and events, so those actions may still trigger the clause's operation. But again, narrow interpretation is the rule. So, whether a state government's limits on events over a certain size right now can justify canceling an event 5 months away is an open question.

Notice requirements

It's also important to note that most force majeure clauses include a notice requirement. So, if you're invoking the clause as an excuse not to perform an obligation, you'll likely need to send a formal, written notice of your suspension or termination of the contract in question.

Need help interpreting your force majeure clause, and determining a course of action? Give me a call. We're working remotely, but still looking out for you!

REGISTER NOW! Podcaster’s Legal & Business Bootcamp live and in-person in conjunction with Podfest Expo.

REGISTER NOW! Podcaster’s Legal & Business Bootcamp live and in-person in conjunction with Podfest Expo.

On March 6th,  I'll be holding my Podcaster’s Legal & Business Bootcamp live, and in person. The workshop, previously conducted online, will coincide with the Podfest Multimedia Expo in Orlando, Florida, where I'll also be speaking.

This half-day, intensive hands-on workshop is for podcasters who are serious about podcasting as a business (or as part of another business).  

If you plan to monetize your podcast, whether through advertising, affiliate sales, or by promoting your own products and services, you absolutely must  stop treating your podcast like a hobby, and get your legal and business affairs in order. I want to help make that happen quickly and cost-effectively, so you can be ready to strike when important opportunities come along.

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Speaking at Podcast Movement, Evolutions!

Speaking at Podcast Movement, Evolutions!

Next week, I'll be speaking at the Podcast Movement – Evolutions conference in Los Angeles. My talk is about content acquisition and compensation structures for podcasters. I'll be covering how to pay for and get paid for content as a podcaster.

If you're a podcaster and you're serious about it as a business, or as part of your existing business, you won't want to miss this discussion. Friday, February 14th at 4:00pm . If you're attending the conference, look for me and say hello!

Has AB5 affected you yet?

Earlier today, I had a call from the HR director at one of the colleges where I teach one night a week. She called to tell me that I can no longer be classified as an independent contractor, and that under California’s new law, AB5, I must be treated as an employee. OK. No big… Continue Reading

Is your Podcast subject to COPPA?

Recently, many YouTube creators have struggled with/complained loudly about the platform’s new rules for designating content directed at children. This, of course has led podcasters, too to become concerned and to wonder whether COPPA applies to them. COPPA, which stands for Child Online Privacy Protection Act, was enacted by the U.S. Congress in 1998 and… Continue Reading

I have a new podcast for showbiz professionals!

A few weeks ago, I quietly began releasing episodes of a new podcast, called More, Better, Faster! Success Strategies for Show Business Professionals.Today, I released the 11th episode, featuring conversation with Financial expert, Cortlon Cofield, in which we discussed some common financial mistakes creative folks make, and some tips to get set up for success…… Continue Reading

Gordon Firemark named among the Best Lawyers in America

For the fourth year in a row, Gordon Firemark has been selected by his peers for inclusion in The Best Lawyers in America for his work in Entertainment Law – Theater. “I’m grateful for this recognition. It really validates what I’ve been doing” says Gordon who describes his mission as Helping Entertainment Professionals Realize Their Dreams. Gordon Firemark’s… Continue Reading

The Trouble with Tunes – approaches to using music in podcasts (Podcast Movement 2019)

Thursday afternoon, I’ll be presenting my talk at Podcast Movement in Orlando. I’ll be outlining the various ways in which music can be used by podcasters, where the music may come from, and the complex web of copyright and licensing issues that have historically made using commercial music both difficult and costly. Then, I’ll sound… Continue Reading

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