The holiday season often brings an increase in events featuring Santa Claus, themed characters, or other performer—but have you ever thought about the contractual clauses Santa agrees to in connection with his appearances at these events? Like with any performance agreement or event contract, Santa and the event host will need a complete, well-written contract to properly set expectations and allocate responsibility so no one ends up on the naughty list. In the spirit of the holidays, this post highlights some key considerations in performance and event contracts.
Scope, Payment, and Expenses
First, it is important to clearly describe the scope of the performance to avoid any confusion or ambiguity on the day of the event. For example, consider Santa at a holiday party. Santa’s job could simply be to sit on his throne for pictures, or he could have a more active, performative role at the event involving following a script, singing, storytelling, or letter reading. Is it a photo-based event and/or a performance-based event? Are there requirements for his costume (including whether his beard and round belly need to be authentic)?
Other key details to include in the contract are the time(s) and location(s) of the event and event attendees. A family-friendly event may warrant a different set of expectations from Santa than a performance at an adult-only event. Any performance standards, such as demeanor and costume, should be consistent with the host’s and any event sponsor’s brand, language, and conduct requirements (e.g., no use of alcohol or tobacco while in costume) and incorporate any event venue policies.
Next, consider how you will pay Santa, which could be a flat fee, hourly, or per appearance. It is also important to specify expenses that are not covered. These expenses may include the cost of food or décor at the event and travel or meals for the performer.
Photography Rights and Release
If you have a Santa at your event, guests will most likely be taking pictures and videos with him, and the event may even include a photographer to take photos and video recordings of the event (for which you would need a separate contract). If the event host wants to post pictures of Santa to its website or social media accounts, proper release language should be included. In this case, the contract should include language regarding ownership rights of the photos and videos, as well as language for Santa to consent to such usage of his name, image, and likeness and release any claims of ownership to the photos, videos, and recordings.
Santa may also want to use images or videos to advertise his services, so the event host must decide if it wants to permit, prohibit, or limit such uses (e.g., Santa can only use images for promotional purposes with the event host’s consent and proper attribution requirements). If Santa’s helpers supply photography services for the event, consider incorporating a media release and data-handling terms for images of attendees into the contract, including any applicable parental consents and use restrictions.
Cancellation Clauses
For contracts that are tied to a specific event (or series of events), cancellation or termination may have a greater effect than other types of contracts in which an ongoing service is being provided. If a marquee performer like Santa cancels the event, the event host may not be able to find another suitable Santa in time, and the event may not be able to be rescheduled. Conversely, if the event host has to cancel the event, Santa may have already incurred costs (travel, marketing, or other expenses), as well as lost the opportunity to book another event for that timeframe. Therefore, it is important to include cancellation and rescheduling provisions, with tiered consequences based on the timing of cancellation, such as nonrefundable deposits, and force majeure language that addresses cancellation due to any extreme weather, public health restrictions, or venue closures.
Insurance, Indemnity, Compliance
To protect itself from liability, the event host should consider requiring Santa to carry appropriate liability insurance and provide proof of such insurance certificates. The venue or event host should also consider maintaining its own liability coverage for additional protection. Further, the host could consider requiring Santa to indemnify it from losses associated with his negligence, willful misconduct, breach of contract, or any bodily harm or property damage caused by Santa at the event.
Additionally, the event host should consider performing background checks (even on Santa!) consistent with applicable law and privacy requirements, with clear criteria the performer must satisfy to work the event. This may be especially important (or even required, jurisdiction dependent) when the performer will be interacting with children. General requirements for compliance with laws, regulations, permits, and venue or event requirements should also be included. If the event is private in nature or confidentiality obligations apply, it is also important to include confidentiality restrictions so the performer is aware of any obligations to keep certain information confidential (e.g., identities of guest attendees or employees or specific details regarding the event).
We wish everyone a happy, healthy, and safe holiday season!
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