Photo by Felix Mooneeram on Unsplash
In just over one month since social distancing measures were put into place in Ontario, the entertainment industry has been dramatically affected. Due to the rise of COVID-19, television and film production has been halted, live performances have been cancelled, and it has been projected that large-scale gatherings will not return until 2021.
It is our responsibility as entertainment lawyers to address the issues for our clients that stem directly from this new reality, including the logistical issues concerning the production and release of content, contractual issues for both talent and producers, and financial issues that affect all of the creative industries.
In this three-part series, we will address these topics as well as reasons to be optimistic about the outlook of the entertainment industry and the new opportunities that may arise. In Part 1, we’ll look at some of the major logistical issues for the entertainment industry as a result of COVID-19.
Content Production
For producers who were planning to shoot live action films or television series in the near future, schedules have had to change since production has been halted. Many producers have been forced to delay production and wait out the shutdown. For producers who were planning on filming abroad, original plans may no longer be economically feasible once restrictions are lifted; without the tax incentives of shooting in Canada and with box office numbers sure to be down for the foreseeable future, producers may no longer be able to absorb the extra costs of filming abroad.
Even when jurisdictions relax regulations and allow gatherings of enough people to properly run a film set, it likely won’t be back to business as usual for months or potentially years. Due to this uncertainty, insurers will be unlikely to cover productions for cases of COVID-19, as it will be an identified risk. Accordingly, film and television production norms will be altered and new policies will need to be put in place by producers.
For example, we anticipate that upon resuming filming activities, producers will begin to require cast and crew to sign releases acknowledging the risk of entering into a “high-density area” such as a film set, and indemnifying the production against any liability stemming from the contraction of COVID-19 on set.
We may also recommend that our producer clients put new regulations into place in order to ensure a safe set in light of increased health risks. An ideal measure would be to conduct rapid antigen tests for all those entering the set, although that would also come with potential privacy concerns which would need to be navigated. A less extreme measure would be to not film crowd scenes requiring many extras to squeeze into a frame, using visual effects instead if feasible.
In the meantime, content producers will need to get creative. We’ve seen live television programs such as Saturday Night Live and The Tonight Show film episodes from home, while musical artists have been live streaming sets from isolation (in Ontario, MusicTogether is supporting musicians by providing a virtual performance platform with 100% of funds going directly to the artists). While Sports leagues have largely struggled to find ways to engage differently with consumers (the NBA’s broadcast of a game of “HORSE” using choppy smartphone feeds drew only 372,000 viewers), eSports viewership has surged.
For those without a product ready to roll out, we recommend taking this opportunity to develop new content. Although audiences are up, it is unclear how long networks, broadcasters and streaming services will be able to satisfy the demand. In a few months, there may be limited new content to launch and producers should start thinking of ways to fill those gaps.
Content Release
For producers with content that is ready to release, COVID-19 has brought on a different set of logistical challenges. With theatres closed for the foreseeable future, film releases are being pushed back and unreleased material is stacking up.
Looking at the revised release dates for major films, Hollywood seems to think that audiences will be back in theatres by November. The release of Pixar’s newest film, Soul, was rescheduled from April 13, 2020 to November 20, 2020. Marvel’s Black Widow was set to enter theatres on May 1, 2020, but is now scheduled for November 6, 2020. The newest James Bond film, No Time to Die, has been pushed from April 8, 2020 to November 12, 2020.
Whether we see another wave of rescheduled releases if COVID-19 persists through the summer remains to be seen, but even once restrictions are relaxed and lifted, it is almost certain that there will be a period of time when movie-goers are not as comfortable squeezing into seats next to strangers, which will have a significant effect on the box office.
The best path for producers may be to forego a traditional theatrical run and make their content available digitally instead. We saw this on March 16, when NBCUniversal announced that it would be making Trolls World Tour (which was due for theatres on April 10) available on digital platforms. Following the digital debut, it was reported that the film had become Universal’s most streamed film ever on a release weekend, having been purchased over 10 times more than its next most streamed film, Jurassic World: Fallen Kingdom. How this ultimately translates to Universal’s bottom line remains to be seen, but its initial numbers provide a compelling reason to embrace digital debuts amid the uncertainty surrounding the future of traditional theatrical releases.
In the rest of the entertainment industry, the same trend toward digital distribution has followed. There is currently an increased demand for content and now is the time to adapt in order to give consumers what they want. ESPN recognized this opportunity and released its Michael Jordan documentary, The Last Dance, ahead of its intended June 2020 release date and saw its best-ever documentary ratings, amassing 6.3 million viewers for the first episode.
During the pandemic, we have also seen the launch of “Quibi”, a short-video distribution platform (spanning from scripted series to reality TV and interactive content) which can only be accessed through a mobile device. With limited production budgets and means, we may continue to see an adjustment toward “bite-sized” content that will still deliver a positive consumer experience.
The bottom line is that creators need to adapt to both the barriers and opportunities created by the new realities of content production due to COVID-19. As new forms of media and distribution emerge during this time, creators will need to ensure that their rights are protected. The entertainment lawyers at Hall Webber LLP have guided clients through the rise of digital media, social media and streaming platforms, and we are here to guide you through whatever happens next.
This article is for informational purposes only and is not, nor is it intended to be, legal advice. Please contact Michael Sniderman at Hall Webber LLP (michael@hallwebber.com) if you wish to consult a lawyer for advice regarding your individual situation.