Curtain Up: Broadway’s Legal Issues on the Road to Reopening
This is a time of both celebration and uncertainty for the New York theater industry, which is in the process of reopening following a shutdown dating back to March 12, 2020. Broadway shows resuming performances in September 2021 alone include Hadestown, Waitress, Chicago, Hamilton, Wicked, The Lion King, Six, Come From Away, American Utopia, Moulin Rouge!, and Aladdin.
In July 2020, I wrote an article for the New York Law Journal regarding the legal issues for the theater industry posed by COVID-19. I also gave CLE presentations for the NYS Academy of Trial Lawyers, Volunteer Lawyers for the Arts, and my colleagues at Herzfeld & Rubin. With the reopening of Broadway now in full swing, this would be an ideal opportunity to further delve into the topic and address new developments.
The shutdown of theater in New York was the direct result of Executive Orders issued by former Governor Andrew M. Cuomo pursuant to emergency powers granted by the New York State Legislature. On March 12, 2020, five days after declaring a State of Emergency under Executive Order 202, Cuomo forbid public gatherings of 500 or more people. Not coincidentally, Broadway theaters have 500 or more seats. When the shutdown began, 31 shows were running on Broadway and 16 shows were scheduled to open in the coming weeks. Six, a new musical which reimagines the six wives of King Henry VIII as contemporary pop stars, was scheduled to open on the night of March 12, 2020. (Its opening night will now finally be held on October 3, 2021.)
Venues with less than 500 seats (i.e. Off-Broadway and Off-Off-Broadway) were originally permitted to continue operating at half-capacity. However, Executive Order 202.6 (“New York State on Pause”), which took effect on March 22, 2020, banned nonessential gatherings including theatrical performances. Months later, in order for Saturday Night Live to have a live studio audience present during filming, NBC worked around the law by “casting” audience members and paying $150 to each of them, per The New York Times.
In The Clementine Company LLC v. Cuomo et. al., case no. 1:2020-cv-08899, filed in the Southern District of New York in the fall of 2020, a handful of Off-Broadway theaters demanded the right to reopen and monetary damages from the City and State of New York. They alleged that the shutdown infringed upon their constitutional rights and that there was no legal justification to keep theaters closed since other public venues had been permitted to reopen at limited capacity.
Following a 20-page Decision and Order dated August 4, 2021 issued by the Hon. Colleen McMahon, all that currently remains of the lawsuit is “a claim for backward looking nominal damages and corresponding declaratory relief against the Mayor.” Judge McMahon laid out potential options for Mayor Bill de Blasio to resolve the case, one of which was to “tender $1 to the plaintiffs, under cover of a letter in which he denies liability and asserts immunity but refuses to waste another dime of taxpayer money on what is an essentially meaningless case.”
One can assume that theater industry leaders did not challenge the legality of the shutdown because of the demanding economics of producing live theater, which would have made it nearly impossible for Broadway or Off-Broadway shows to survive financially if they reduced seating capacity in order to allow for social distancing unless theater owners and producers renegotiated contracts with the unions that represent theatrical artists and employees in order to substantially lower production costs. (The Metropolitan Opera nearly derailed its upcoming season in its attempt to negotiate new union contracts.)
As the shutdown persisted, many theater companies attempted to raise revenue by selling “tickets” to virtual streaming productions. This led to an unusual dispute between Actors’ Equity Association (the union representing stage actors and stage managers) and SAG-AFTRA (the union representing screen actors) regarding which union had the jurisdiction to issue contracts for these productions. The two unions eventually agreed that while SAG-AFTRA would normally have jurisdiction, Equity would temporarily be able to issue contracts for digital programs that are closer in nature to live theater than film or television.
Notwithstanding, many theater companies presented digital productions through the Theatre Authority, an organization recognized by both unions that allows actors to participate without pay in digital productions that serve as fundraisers for nonprofit groups and can be viewed for no more than 96 hours.
As documented by the blog Broadway Journal, theater producers and owners experienced mixed results in seeking financial relief from their insurance carriers. Jujamcyn Theaters, the owner of five Broadway theaters, filed a lawsuit against its insurance carriers after it was denied coverage under its property damage policy and received limited coverage under its performance interruption policy. On the other hand, Broadway shows such as Come From Away and Company received sizable payouts pursuant to their policies.
In order for shows to be ready and willing to reopen, it was critical for the government to step in with serious financial assistance, which arrived in the form of the Shuttered Venue Operators Grant program, a part of the $900 billion COVID-19 relief package signed into law in December 2020. It provides $16 billion in grants, of up to $10 million per grant, to live venue operators and promoters, theater producers, and performing arts groups. Some shows with multiple concurrent productions, which are organized as separate corporate entities, were eligible for multiple grants.
Initial steps were taken earlier this year by the state and local government to bring live theater back to New York. An “Open Culture” law introduced by New York City Council Member Jimmy Van Bramer allowed arts groups to apply for permits to present shows in streets and open spaces. The State also launched NY PopsUp, a pilot program that allowed for a limited number of socially-distanced pop-up shows.
On April 2, 2021, pursuant to Executive Order 202.98, theaters were permitted to reopen at up to 33 percent capacity, with limits on the total number of people present depending on whether the show was being presented indoors or outdoors and whether it required proof of vaccination or negative testing. On the same date, Blindness, an experimental sound-and-light installation with no live actors, became the first Off-Broadway show to open in New York in over a year. Tickets were sold in two-seat pods that were six feet apart from each other.
On May 3, 2021, Cuomo announced that Broadway shows would reopen at full capacity in the fall while observing all applicable health and safety guidelines, such as those relating to air filtration, sanitization, health screenings, and mask enforcement measures. Pursuant to Executive Orders 202.107 and 202.108, theaters were permitted to resume performances at full capacity as of May 19, 2021 so long as they required proof of vaccination or incorporated social distancing measures.
On June 26, 2021, Springsteen on Broadway, Bruce Springsteen’s acclaimed solo concert, became the first show to open on Broadway since the shutdown began. The show’s producers announced in advance that audience members would only be able to attend if they had received a vaccine authorized by the FDA or WHO, with exceptions for “children under the age of 16, or those who need reasonable accommodations due to a disability or sincerely held religious belief” and who tested negative in advance.
On July 30, 2021, the owners and operators of all 41 Broadway theaters announced that until health conditions change, all audience members, performers, backstage workers, and other theater staff will need to be fully vaccinated, with exceptions for “children under 12 and people with a medical condition or closely held religious belief that prevents vaccination.” Four days later, Mayor de Blasio unveiled the “Key to NYC” mandate, which requires people 12 and older to provide proof of vaccination in order to attend specified indoor activities including theatrical performances.
On September 16, 2021, many of the same Off-Broadway theaters that had previously challenged the legality of the shutdown (including the Theater Center, Players Theatre, SoHo Playhouse, and Actors Temple Theatre) filed a new federal lawsuit against Mayor de Blasio taking aim at the “Key to NYC.” In The Clementine Company LLC v. de Blasio, case no. 1:2021-cv-07779, the theaters allege that the vaccine mandate violates their constitutional rights to freedom of speech and equal protection because it treats theaters more strictly than other venues including houses of worship, schools, and community centers. Interestingly, it is further alleged that some of these theaters are also host religious services, at which time they are not subject to the mandate.
During the Black Lives Matter protests of June 2020, many Black, Indigenous, and People of Color (BIPOC) theater artists claimed to have experienced racial discrimination during their careers. Subsequently, concerns about workplace harassment in the theater industry came to light following exposes about the harsh experiences of unpaid apprentices at Off-Off-Broadway’s Flea Theater and young men and women who have worked as office assistants for Broadway producer Scott Rudin. In response, many theater companies pledged to make major organizational and leadership changes.
In August 2021, industry leaders entered into a formal written agreement with Black Theatre United, an advocacy group whose founding members include many well-known Black theater artists. Developed in consultation with the Center for Diversity, Inclusion, and Belonging at NYU School of Law, the agreement (titled “A New Deal for Broadway”) sets out commitments from theater owners, producers, unions, casting directors, and artists to implement reforms that are intended to achieve “Equity, Diversity, Inclusion, Accessibility & Belonging (EDIAB).” That being said, the agreement explicitly states that “the commitments in this document are not legally enforceable and do not give rise to any cause of action.”
The new Broadway season leaves many lingering questions that could have major legal consequences: Will vaccination requirements be loosened by the government and the industry if and when health conditions improve? If health conditions get worse, will the government force theaters to shut down all over again? If ticket sales are disappointing, will theater owners and producers seek major contractual concessions from the unions in an attempt to prevent shows from closing?
For now, “intermission” is finally over. So, let’s raise the curtain and hope for the best – and I hope to see you at the theater soon.
Matthew Windman is an associate attorney at Herzfeld & Rubin, P.C. He also writes about theater for the newspaper amNewYork Metro and is the author of The Critics Say…: 57 Theater Reviewers in New York and Beyond Discuss Their Craft and Its Future.