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S-22 ¦ JULY 20, 2020 INSURANCE LAW

¦ From THE SHOW on PAGE S-21 best interest to renegotiate or forgive rent and other
public gatherings of 500 or more people. Not co- contractual obligations during the shutdown.
incidentally, Broadway theaters have 500 or more On March 18, 2020, the Dramatists Guild of
seats. (It is hard to believe now, but Broadway did America (an organization representing pro-
not shut down during the Flu Epidemic of 1918). A fessional theater writers) released a statement
handful of small Off-Broadway theaters continued bringing attention to the fact that some theaters
to hold performances, albeit at half-capacity and were asking playwrights to return advance and
with social distancing and sanitation measures in option payments for productions that had been
place, until non-essential gatherings were banned cancelled or postponed due to COVID-19. “Our
altogether under the “New York on Pause” execu- request to the theatrical community is to stop
tive order. scapegoating the dramatists at this unprecedent-
It was soon confirmed that Hangmen and Who’s ed time, and our advice to dramatists confronted
Afraid of Virginia Woolf?, which were still in pre- by these demands is to just say no, with the full
views as of March 12, 2020, would not resume knowledge that it was unfair for you to be put in
performances. Disney Theatrical Productions also this position in the first place,” wrote Ralph Se-
announced that Frozen (which had opened on Broad- vush, executive director of business affairs and
way approximately two years earlier) had closed for general counsel for the DGA.
good. The producers of many other Broadway shows Whether theater owners and producers can ob-
that were either in previews or about to begin pre- tain insurance coverage for financial losses resulting
views (including productions by the not-for-profit from the shutdown will, of course, depend on the
groups Lincoln Center Theater, Roundabout The- particular language of their policies. According to
atre Company, and Second Stage) have announced the website Broadway News, theater owners gen-
tentative plans to resume performances after the erally take out insurance to protect their theaters
shutdown ends. A revival of The Music Man star- against physical damage, while the producers of in-
ring Hugh Jackman has shifted its opening night to dividual shows obtain policies guarding against the
Spring 2021. cancellation or interruption of performances. As per
While the 41 theaters of Broadway remain dark, Reuters, it is expected that going forward, insurance
the New York theater community has been left to companies will not be willing to provide pandemic
grapple with challenging legal issues relating to insurance coverage to the theater industry.
governmental directives, contracts, insurance cov- People who had purchased tickets for performanc-
erage, refunds, presenting live and prerecorded es that got cancelled should not have experienced
content on the internet, and what health and safety any difficulty in obtaining refunds—although it may
measures will be needed once the theaters can re- have taken longer than expected. Under the New
open. York Arts & Cultural Affairs Law, with limited ex-
Existing contracts will likely be closely scruti- ceptions, ticketholders are entitled to refunds after
nized as to whether payment or performance is an event is cancelled or rescheduled. By extending
excusable under a force majeure clause or some the Broadway shutdown in successive increments
other common law defense such as impossibility or (originally to April 12, 2020, then to June 7, 2020,
frustration of purpose. As per the website Broad- then Sept. 6, 2020, and now Jan. 2, 2021), produc-
way News, theater producers are still technically ers have been delaying their obligation to provide
required to make rent payments to theater owners refunds.
(including major Broadway landlords such as the Some of the most significant legal questions
Shubert Organization, the Nederlander Organiza- stemming from COVID-19 have involved stream-
tion, and Jujamcyn Theaters). However, to prevent ing theater-related programming, such as informal,
the shows from closing for good during the shut- Zoom-style play readings and concerts performed
down, theater owners may decide that it is in their by theater artists from their homes, which numerous

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