With many European collection societies controversially giving promoters rebates, are artists and their representatives right to look to self-administer performance fees?
Sign up for IQ Index
The latest industry news to your inbox.
With fans still sitting on event tickets that they bought as long ago as 2019, the industry is facing a dilemma
By James Hanley on 11 Mar 2022
With fans still sitting on event tickets that they bought as long ago as 2019, the industry is facing a dilemma when it comes to who merits a refund and who does not. And as Covid becomes endemic, should refunds remain obligatory for ticketholders who test positive? James Hanley investigates.
The race to contain Covid-19 outbreaks and variants over the last 24 months has been likened to a game of Whac-A-Mole. But as the international live music business begins to emerge from the horror of the pandemic, it will need its own mallet at the ready to combat the litany of fresh problems popping up day-to-day.
One of the more mundane but contentious debates to be sparked in recent months surrounds the matter of refunds. The issue was brought to the fore by Dead & Company and promoter CID Presents’ Playing in the Sand destination festival, which was set for Mexico’s Riviera Cancún over two weekends in January this year.
Amid the omicron surge of late 2021, organisers opened a 48-hour refund window for fans having second thoughts about attending (all ticketholders were ultimately refunded when the event was pulled at the 11th hour due to a spike in infections). However, CID declined to repeat the offer for its other January festivals: Crash My Playa and HootieFest: The Big Splash.
“If, at any point during the two weeks leading up to a particular event, the CDC Risk Assess- ment Level for Covid-19 for the Quintana Roo (Cancún) region of Mexico rises to a Level 4 or Mexico designates the area unsafe to hold an event, we will be offering full refunds to those not wishing to attend the particular event,” said a statement by the promoter. “We continue to recommend buying travel insurance, which may help protect against the risks of Covid-19 and travelling internationally during the pandemic.”
It was a similar situation at Wilco’s Sky Blue Sky “concert vacation” in Mexico, also in Janu- ary, produced by Cloud 9, The Bowery Presents, and Higher Ground Presents, which stressed its no-refund policy and encouraged festivalgoers to purchase travel insurance. “A refund, or the ability to hold one’s spot for a rescheduled date, will be available to purchasers if the event were to be postponed,” Cloud 9 told Billboard.
But far from limited to sun-drenched getaways, the refund question is pertinent at all levels of the industry, in every market across the globe. “There is a set Live Nation policy across the board,” explains Barnaby Harrod of Mercury Wheels, part of Live Nation Spain. “When an event is cancelled, you get an automatic refund. With reprogramming, the original tickets are, of course, valid for the new dates. However, if some- body can’t make the new show, or doesn’t want to, they have 21 days to ask for a refund, and that has been applied across the pandemic.”
Certain events and promoters also offer refunds or a voucher for anyone who is unable to attend due to testing positive. Harrod advises that every claim is assessed on its own merits.
“For exceptional refunds, which are requested outside the established timeframe, we work on a case-by-case basis,” he says. “So in the current climate, where the government has restrictions in place for people who have Covid, if somebody can certify that they have Covid, then they should be entitled to a refund.”
Elsewhere in Europe, AEG Presents France GM Arnaud Meersseman points to France’s “very protective” consumer laws, which allow customers to claim refunds up to five years after the event.
“Obviously, if a show is rescheduled or can- celled, it’s an automatic refund and there’s no discussion there whatsoever,” he tells IQ. “As for no-shows, as of today, they can warrant a refund. But we’ve seen in practice that it’s not really the case, as a lot of people don’t ask for them.
“The last big show I did was December at the Zenith Paris, and out of 6,000 tickets, we had 20% no-shows. The only other big shows I had be- tween September and December were two nights of Nick Cave, but they were seated shows at 2,000- cap each, and we had almost zero no-shows.
“Over here, what most people have done in practice is wait out a month in terms of refund requests, and if those refund requests haven’t come in during that time, we settle off the show basically. But that’s not really the law, I mean, people can ask for refunds after five years. But we’ve noticed that essentially, past one month, there’ll be the odd refund request here and there, but it’s really rare.”
DEAG executive Detlef Kornett says it is difficult to make general statements due to the fragmented nature of the German market but suggests most promoters have maintained a flexible approach to refunds.
“We have demonstrated a lot of flexibility and offered customers the opportunity to re-book their ticket if and when possible, use it for a different show, get a voucher, or in certain instances, even reimburse the ticket value,” he says. “That was true also if they were unable to attend due to Covid.”
DEAG’s UK subsidiary Kilimanjaro Live returned to action in August 2021, staging two arena dates by Gorillaz at The O2 in London. Kili CEO Stuart Galbraith attempts to sum-up the story so far.
“We never get 100% attendance – between 3% and 5% of people indoors and up to 10% outdoors buy tickets and then just don’t come – but we were back up at 95-97% attendance rates all the way through September, October, and November,” he says. “Then as omicron started to come into play and we headed into Christmas, those rates started to drop again to as little as 70% on some occasions.
“When we came back after Christmas, almost instantly, those attendance rates went back up to 95-97%, and that’s where they’ve been ever since. But what was very interesting is that virtually none of the customers who didn’t attend the shows before Christmas asked us for refunds. They’d just decided they weren’t going out and would take it on the chin.”
He continues: “The analogy I’ve used over the last couple of years is that, if you had an EasyJet flight booked that cost you £20 to £40, in my personal experience, I haven’t bothered to ask for a refund on that because I can’t be bothered. It’s just one of those things. However, if I’ve got a transatlantic flight, which is worth several hundred quid or thousands of pounds, I do want a refund on it. And I think that tickets and concert tickets fall into that EasyJet category – I don’t think people can be bothered to ask for the refund, to be quite frank.”
“People have almost been treating a ticket like something they bought off Amazon and saying, ‘Oh, we don’t really fancy that now,’ the day before. And at that point, what do you want the festival organiser to do about it?”
Paul Reed, CEO of the UK’s Association of Independent Festivals (AIF), reveals the organisation took legal advice with regards to refunds last year on behalf of its 90 members – and reached a definitive conclusion.
“The fact is a consumer is not legally entitled to a refund if they’re isolating and not allowed to travel, in the same way as if they were unable to travel for any other reason,” asserts Reed. “The view was that, ultimately, the customer is not due a refund, but I think it’s a decision that has to be up to the individual event. It is entirely at their discretion and there is no obligation. But from speaking to others in the industry, my sense is that it is being assessed on a case-by-case basis, irrespective of the legal situation.”
Reed adds that some AIF members have ex- pressed concerns that a “refund culture” has seeped in among punters.
“Perhaps it’s understandable, but people have almost been treating a ticket like something they bought off Amazon and saying, ‘Oh, we don’t really fancy that now,’ the day before. And at that point, what do you want the festival organiser to do about it?” he sighs. “You’re not due a refund, but I think that mindset has permeated a little bit more throughout festivals and live experiences – customer expectation shifting – and people feeling more entitled to a refund when it is more complicated than that.
“When you buy a ticket, it is binding, and that is all very clear in the Ts and Cs. I think customers need to understand a little bit more about what they’re committed to when they buy a ticket, so I don’t know whether some education is needed around that.”
Fans no longer able or willing to attend events are encouraged to sell on their tickets via face-value resale sites.
“Specific insurance is also available to the customer as a voluntary upsell, and I believe some travel insurance policies also cover it,” says Reed.
Guy Dunstan is MD, ticketing and arenas for Birmingham-based NEC Group, which manages five of the UK’s leading indoor venues including Birmingham’s Resorts World Arena and Utilita Arena, as well as national ticketing agency The Ticket Factory. He tells IQ the company has been proactive on the issue by offering ticket insurance with Covid cover included.
“I know that some venues and ticketing companies have been hit harder than others with regards to the refund situation,” says Dunstan. “We’ve been offering ticket protection insurance to customers for a significant period of time, so the refunds we’ve given have been pretty minimal because we’ve been able to point customers to the fact that they were offered the insurance at the time when they purchased the tickets.
“We were able to get that as cover quite early on in the pandemic through the ticket insurance provider that we work with, and it’s been of real benefit to us. So our sense is that we’re well protected from that moving forward.”
Down under, Live Performance Australia (LPA) administers the ticketing code of practice for the entertainment industry that outlines consumers’ rights to a refund. First released in 2001, the trade body reviewed and updated the code in 2020.
“While the impetus for the most recent changes was the Covid-19 pandemic, LPA was conscious to ensure any updates have a life beyond Covid-19,” says the group’s CEO Evelyn Richardson. “The ticketing code was widely used by the industry pre-Covid and will continue to be the go-to resource about refunds as Covid-19 moves to becoming endemic and beyond.”
Richardson says the LPA expects its members to treat ticketholders fairly if shows are forced to can- cel or are postponed due to government mandates.
“Whether ticketholders are entitled to a refund, exchange or other remedy will depend upon the ticket terms and conditions applicable when tickets were purchased,” she states. “Many companies have a Covid refund and exchanges policy, which sets out if ticketholders will get a refund, exchange or credit note if they are un- well with Covid symptoms, unable to attend the event due to contracting Covid, awaiting test results, [have been] in close contact, or [due to] border closure.”
With the world slowly emerging from the pandemic, the conversation turns to how flexible the live industry will be as things return to something like normal. Richardson indicates there could still be room for a little leeway.
“Ordinarily, if a ticketholder is unable to attend the event because they are unwell or other personal circumstance, they are not entitled to an automatic refund under Australian consumer law,” she says. “However, event organisers always have discretion to provide a refund or other remedy, if they wish, even though there may not be a legal requirement to do so.”
UK prime minister Boris Johnson has already announced the ‘Living with Covid-19’ plan, which has put an end to the legal requirement in England to self-isolate after a positive Covid test. Free testing has also been scrapped, although that isn’t an issue everywhere.
“They’ve never had free Covid tests in Spain,” testifies Madrid-based Harrod. “You would always have to go to the chemist to buy one.”
For Galbraith, however, the ramifications for the sector’s refund policy are obvious.
“Realistically, now that Covid has no legal status over and above any other disease, then that’s it, life is back to normal from an event organiser’s point of view,” he offers. “If somebody has flu, chickenpox, mumps, or whatever, and they can’t go to the show, then, unfortunately, that’s just part of life, and I think the same will be true of Covid.
“In the last two years, we have seen a significant increase in the number of customers taking out personal insurance on their tickets. For a very small percentage of the ticket cost, you can insure your ticket in the way that you can a holiday or anything else. That insurance, in many cases, does actually give you illness cover. So I think that is an easy customer solution going forward.”
“Now the isolation rules have changed, and you don’t have to isolate, then I think it just becomes like any other illness,” agrees Dunstan. “We all have to take a sense of responsibility to make sure that we’re healthy and well [enough] to be going to events. But as for venues and companies that have been offering refunds if you can demonstrate you are Covid positive, I can just see that going away.”
On that point, there appears to be something approaching a consensus.
“Once it is endemic, Covid would most likely not be a reason that entitles you to a refund as such anymore,” muses DEAG’s Kornett.
“At the end of the day, if somebody has gastroenteritis or common flu, or gets grounded by their parents because they have bad grades, do you refund them?” concludes Paris-based Meersseman. “At some point, there is no law in this, it’s going to be commercial practice. Once this virus becomes endemic and breaks out of the pandemic stage, I don’t see us offering refunds for people who have Covid.”
Get more stories like this in your inbox by signing up for IQ Index, IQ’s free email digest of essential live music industry news.