2022 Marcom Trends - Magazine - Page 32
COVID-19’s Impact on Commercial Productions
Howard R. Weingrad, Partner, email@example.com
Samantha G. Rothaus, Associate, firstname.lastname@example.org
Ever since COVID-19 was declared a global pandemic in March
2020, it would be an understatement to say that the world has
In particular, the world of producing advertising content has certainly
changed significantly. Production of commercials, film and television
shows all paused for a brief period that felt like a lifetime during the
spring 2020. As production activities slowly began to resume in
summer 2020, a number of new and continually evolving protocols,
best practices and expectations have emerged.
The two key issues that every production
must now consider:
1. What is the financial impact if the production needs to be
unexpectedly postponed or cancelled due to circumstances
arising from COVID-19?
2. What protocols and guidelines should be implemented in
order to reduce the spread of COVID-19 and protect the
health and safety of those participating in the production?
• Most companies did not enter into production
contracts with an expectation that cancellation or
postponement would be likely.
• At the outset of the pandemic, before shut-down
restrictions and regulations, it was unclear what
cancelling or postponing due to health and safety
concerns would mean financially. Many production
contracts did not address this situation very clearly.
• Cancellation and postponement provisions, and force
majeure provisions — which excuse performance
when it becomes impossible or illegal due to an
unforeseeable event — typically consisted of
boilerplate legal terms that were not often heavily
32 DAVIS+GILBERT LLP
Postponement or Cancellation
All productions for advertising content should be done pursuant to
a production agreement or other contract. The COVID-19 pandemic
has given rise to a reconsideration of contractual provisions related
to cancellation, postponement and force majeure.
Health and Safety Precautions
Over the course of the pandemic, new guidelines and best practices
have emerged to mitigate the risk of a production being interrupted
by COVID-19, and to protect the health and safety of participants
on set while working to avoid ongoing spread of the virus. Many of
these protocols and precautions have been determined by federal,
state and local authorities, and have been adopted by industry
Some of the precautions that have become standard practice for
advertisers and agencies to require, and for production companies
to implement and enforce are:
• Carefully selecting shooting locations, considering: indoors
versus outdoors; level of infection in the proposed location; and
whether people would need to travel long distance.
• All parties have become more aware of the likelihood
of production delays or cancellations due to unplanned
circumstances arising from COVID–19 — such as key
personnel getting sick or testing positive for the virus,
becoming unavailable due to quarantine measures,
or legal restrictions rapidly changing in various
• Cancellation/postponement and force majeure
provisions are being renegotiated much more
carefully, and are now more likely to specifically
address COVID-19 and distinguish it from other
events that may cause a production to be cancelled or
• Force majeure provisions sometimes did not specify
how costs should be allocated in such an event, and
sometimes provided that such costs would be handled
in an identical manner as if the advertiser terminated
• Termination “without cause” would typically result
in the advertiser’s obligation to pay for a significant
portion of the total production budget (including all
out-of-pocket costs, and the director and production
company’s service fees), based upon how far in
advance of the production the cancellation occurred.
• Termination for “breach” typically required the
advertiser to pay only for the production company’s
non-refundable out-of-pocket costs.
• Preparing a back-up plan to avoid cancellation if a COVID-19
interruption arises (such as having a back-up location or backup personnel lined up).
• Minimizing the number of people necessary to attend, and
using remote technologies to enable participation without being
• Requiring personnel to provide a negative COVID-19 test,
and/or proof of full vaccination, prior to beginning work on
the production, and additional periodic testing if a multi-day
production or if circumstances otherwise warrant.
• Requiring all attendees to complete a health symptom
questionnaire and submit to a temperature check upon arrival
• Requiring social distancing and restricting mingling of groups on
• Requiring the use of face masks and other PPE whenever
• More attention is being paid to the notion that a
COVID-19 interruption should only be viewed as a
force majeure event if it is truly out of any party’s
control. One lesson from the pandemic has been that
many COVID-19 risks are, in fact, within the parties’
control. Therefore, not every COVID-19 event may be
deemed as a force majeure.
• Cancellation provisions now often focus on the
importance of proper precautions and preparation to
avoid a last minute COVID-19-related interruption. If
appropriate precautions are taken and a COVID-19
event still interferes with the production, then it may
be truly a force majeure. But a failure to take such
precautions could also be viewed as a breach.
• Properly determining whether a COVID-19-related
cancellation or postponement to a production is due
to a force majeure event or a breach has significant
implications on the amount of money each party must
While advertisers and agencies may have some input and are
ultimately responsible to pay for the additional costs required
by COVID-19 protocols, the production company is the party in
charge of overseeing and managing the production on set. As a
result, the production company is typically in the best position to
take responsibility for implementing and enforcing these health
and safety measures, and it has become common for production
companies to hire a COVID-19 safety officer to help manage and
enforce such protocols.
Production contracts should specify each party’s obligations for the
foregoing COVID-19 protocols so that responsibility is clear in the
event they are not properly followed and an interruption occurs as a
• Limiting food and beverages on set, and providing single-use,
individually wrapped and served refreshments.
• Increasing sanitizing of common spaces and restrooms.
• Using improved air flow and filtration systems.
Different productions may require different sets of precautions,
as the particular circumstances of each shoot vary widely.
TRENDS IN MARKETING COMMUNICATIONS LAW 33