Delta Dilemma: Live Industry Navigates More Contagious Variant, Changing Regulations

Stephane De Sakutin / AFP / Getty Images
– Return of the Mask
Masked attendees watch a show at Paris’ AccorHotels Arena on May 29. In a reversal, the C.D.C. now advises that even vaccinated individuals wear masks indoors to combat the coronavirus’ more contagious Delta variant.

The Bell House, a 500-capacity venue in Brooklyn, N.Y., that hosts an eclectic mix of music and comedy programming, did everything by the post-COVID book for its July 22 show. Prior to entry, attendees of the co-headlining show by indie-rockers Steve Gunn and William Tyler had to present proof of vaccination, along with IDs to verify their identities – closing a loophole some around the world have exploited to evade vaccination requirements – and all performers and staff were vaccinated.

Inside, a handful of guests, myself included, wore masks, but the precaution felt excessive. After all, the Bell House’s audience was fully vaccinated, and transmission of coronavirus, even the far more transmissible Delta variant that’s spread in recent weeks, is rare among the vaccinated.

The following morning, Tyler posted disheartening news on Twitter. He’d just tested positive and would have to sit out his subsequent week of gigs with Gunn. Because coronavirus takes time to incubate, Tyler almost certainly didn’t pick it up at the Bell House, and since he was physically removed from the crowd onstage, it’s unlikely he posed much risk to the audience. But the news was still sobering: Even when venues and artists do everything right, coronavirus can still spoil the party.

“I am living proof that you can contract COVID if you’ve been fully vaccinated,” Tyler tells Pollstar from his quarantine location in New York, where five days after the Bell House gig he still had symptoms including fatigue, dry cough and lack of smell. “I almost feel like I’m a guinea pig, in a way.”

Tyler, who is fully vaccinated with both doses of the Moderna vaccine, flew from Los Angeles to New York three days before playing the Bell House, with plans for a brief Northeast tour with Gunn that would take them to several clubs and the Newport Folk Festival. Tyler’s small touring unit – him, Gunn and their road manager – didn’t have testing procedures in place, because they are all fully vaccinated, but when Tyler began to feel symptoms, he took a rapid test. Just before his Bell House soundcheck, it came back negative. Only the next day did a more reliable PCR test confirm Tyler had COVID and not another ailment.

“We need to acknowledge this is going to happen more if we’re not more careful,” says Tyler, who is represented by High Road Touring’s Dina Dusko. “Whatever protocol we had two weeks ago should be out the window.”

Tyler thinks he contracted COVID from an unvaccinated musician in Los Angeles who he was in contact with, which he points to as emblematic of a larger struggle within the live industry to vaccinate its personnel.

“I was talking with a booking agent friend of mine the other night who is a pretty powerful guy in the business, and he just straight up was like, ‘If we started implementing a vaccine mandate for touring parties, a lot of people wouldn’t do it,’” Tyler says. “I was like, ‘Well, OK, good.’ We have to have some pretty baseline rules for interacting right now I think.”

With coronavirus cases rising, predominantly among the unvaccinated, and vaccination rates flagging, after the populations most predisposed to get the jab got inoculated, attention has turned to the far more contagious Delta variant and how it may impact America’s reopening. At press time, the national 7-day average for new coronavirus cases sat around 67,000, its highest since mid-April, and was trending upward, driven by Delta. As July drew to a close, cities including Los Angeles and St. Louis reinstated indoor mask mandates, and on July 27, the Centers for Disease Control and Prevention reversed its prior guidance and recommended even the fully vaccinated mask up indoors. (Editor’s note: Interviews for this story, which appears in Pollstar‘s issue dated August 2, were conducted on July 23 and July 27. Shortly after the issue went to print on July 29, several outlets, led by the Washington Post, reported new C.D.C. findings about the Delta variant’s contagiousness and the severity of the illnesses it causes.)

“The Delta variant is showing every day its willingness to outsmart us,” said Dr. Rochelle Walensky, director of the C.D.C., during a July 27 briefing. “This new science is worrisome and unfortunately warrants an update to our recommendation.”

Meanwhile, Dr. Anthony Fauci, chief medical advisor for the Biden Administration, said that 0.5% of all U.S. coronavirus deaths are among the vaccinated in a July 27 interview on CNN.

“Boy, if there ever was a statistic that would stimulate someone to get vaccinated, I think this one is it,” he added.

Throughout the pandemic, the Event Safety Alliance has been among the live industry’s loudest voices concerning coronavirus safety protocols, and Walensky and Fauci’s advisories, coupled with concerning new data, supports the organization’s insistence that event professionals adhere to the science when determining COVID-related procedures.

“What should venues be doing today? They should be following the science as we know it today, and tomorrow, we should continue following the science,” says ESA vice president Steve Adelman, whose law practice, Adelman Law Group, PLLC, specializes in risk and safety at live events. “The Delta variant is taking hold in some places more than others, and our knowledge about the facts is changing. … The only reasonable thing to do under these circumstances is to follow the science, pay attention to it, and mitigate our health and safety risks as much as we’re able to, given the circumstances on any particular day, wherever we are located.”

Kevin Mazur / Getty Images / FF
– Delta Debate
Fans watch Foo Fighters perform the first full-capacity concert at Madison Square Garden since before the pandemic on June 20. The band postponed a similar reopening gig at Los Angeles’ Forum earlier this month when a member of its team tested positive.

The implications apply to the entire live sector. On July 14, Foo Fighters announced the postponement of their July 17 show at L.A.’s Forum, due to a crew member’s positive COVID test, resurrecting the uncertainty that many in the business felt in March 2020, when shows were coming off calendars en masse: Was the Foo Fighters’ postponement the prelude to a more widespread retreat from the fall 2021 tours so many excitedly revealed just weeks earlier?

The short answer, for compelling legal and financial reasons, is no. While coronavirus has interfered with concert plans for a handful of artists, including Foo Fighters and Tyler, it seems unlikely that – barring the unexpected – tours going out in the coming weeks are in much jeopardy.

First, the legal. While live industry stakeholders prize optics, and overwhelmingly want to keep audiences and staff safe, venues and artists that move forward with gigs face little legal risk, because it’s virtually impossible for someone who tests positive for COVID to prove they contracted the virus at a given concert, according to Adelman. In the Foo Fighters’ case, the possibility that a COVID-positive crew member could expose the band and its partners to legal risk was likely a non-factor.

“Clearly, they take the health and safety of their fans as well as their crew and band very seriously,” says Adelman, citing the high probability “that the reason they canceled their L.A. show had to do with protecting public health.”

Next, insurance. In today’s policies, coronavirus is “completely excluded, so it’s a non-issue as far as insurance is concerned,” says Paul Bassman, an insurance broker who works with scores of entertainment clients as managing director at Higginbotham.

Insurance exclusions for communicable diseases predate COVID and encompass other sicknesses, like SARS or avian flu, Bassman explains, but prior to the coronavirus pandemic, buybacks of those exclusions – securing coverage for those risks at an additional, relatively inexpensive cost – were possible. Today, those buybacks aren’t available, and Bassman doesn’t envision them “being available for quite some time.” Significantly, while policies generally cover event cancellations due to government action – if a state or local authority pulled permits due to an insufficient clean water supply, for instance – COVID has now been carved out of even those stipulations.

“Government shutdown? Sure,” Bassman says. “Government shutdown due to COVID? No.”

And if an artist (or venue or promoter) wants to call off a show for public health reasons, like the Foo Fighters did?

“If I were the manager of some venue, I would respect somebody deciding to cancel an event in my venue based on a concern for public health,” Adelman says. “I would express that concern by not trying to enforce a contract that was contrary to public health.”

Stakeholders have consistently demonstrated a willingness throughout the pandemic to share losses in ways Adelman says left “both parties bloodied and bruised but still standing,” rather than jeopardize public health.

“If I enforce contract language to the letter, I may win this particular battle, but I’ll lose the war,” says Adelman, explaining that venues and promoters should want to behave reasonably in these situations because “if people have a choice with whom to do business, they’ll choose someone who showed some compassion and flexibility during our most dire times.”

But things likely won’t get that far. In high-vaccination places, the reason is evident: Community spread is lower and therefore audiences are at less risk of encountering the virus or contracting it if they do. On the other end of the spectrum, while one might assume that regions where Delta is surging – which correlate with less-vaccinated areas – will be shakier terrain for live events, the truth is probably closer to the opposite.

“For venues that are in relatively less vaccinated places, I suspect that the variant doesn’t change what they do very much, because they’re already in an environment where the science has not particularly influenced their decision-making,” Adelman says. “Their risk tolerance is so high that the variant is not changing their mask requirements, vaccination requirements, physical distancing, it’s not changing anything for them.”

With vaccinations more critical than ever and vaccination rates lagging after a spring surge, live events could, in a roundabout way, help to spur inoculations. As the last year-plus proved, people love concerts and sporting events, and were devastated by their absence. Requiring proof of vaccination to attend mass gatherings is a thorny issue, with critics fixating on perceived affronts to individual liberty – but such requirements undeniably get results. In mid-July, French president Emmanuel Macron announced the national implementation of vaccine passports for many activities, including restaurants and concerts, and within two days, 2.2 million French people signed up to get the shot – roughly 3.3% of the French population, largely people under 35, which added to the country’s pre-existing figure of 40% fully vaccinated. (Subsequent protests forced France’s parliament to scale back some aspects of the law, which has yet to take effect, but the vaccination requirements for live events remain intact.)

Importantly, these aren’t the mandatory vaccination laws that some have suggested. These measures would simply be a way for entities to incentivize – using the carrot of live entertainment – further adoption of the vaccine, which studies have repeatedly proven is safe and effective against severe cases of coronavirus.

After New York City councilmembers including Brad Lander and Mark D. Levine urged Mayor Bill de Blasio to require proof of vaccination for the city’s massive Aug. 21 Central Park concert – featuring Bruce Springsteen, Paul Simon and more – the mayor implemented the policy.

“We should look at requirements for discretionary public activities, which has proved an effective impetus to drive up plateauing rates,” Lander had written in a New York Daily News op-ed. “Almost everything is streaming on Netflix anyway; to go to a theater, you should get vaccinated.”

Already, venues and talent are following suit. The day before the C.D.C.’s new mask guidance, Dave Chappelle announced a one-off show at Washington, D.C.’s 6,000-capacity Anthem – with the message “MASKS ARE REQUIRED AT ALL TIMES” on its poster. Beloved New Orleans club Tipitina’s announced Wednesday that it will require all patrons to present proof of full vaccination or a negative COVID-19 test result from the previous 72 hours for entry, and additionally noted that “masking of all attendees will also remain strongly encouraged consistent with C.D.C. guidelines.” As Lollapalooza revved up, with mandates for vaccination or proof of a negative test, fellow Chicago festival Pitchfork, booked for early September, revealed the requirement that all attendees, not just the unvaccinated, wear masks at all times. Phish kicked off its summer tour at Walmart AMP in Rogers, Ark., currently a COVID hotspot, on Wednesday, along with a message urging fans to get vaccinated and to wear masks at shows, regardless of vaccination status and despite the tour mostly taking place at outdoor venues.

And Tyler? He’ll return to the road soon enough.

“Honestly, I will feel even more protected, because I will have been vaccinated and had this virus,” he says. “I think there’s a relatively safe way to do this, if there’s some pretty strict protocols.”

Adelman generally agrees with Tyler. At shows with largely or completely vaccinated audiences, “the variant presents a problem, but not an insurmountable problem,” he says. “It’s still us deciding about public health on an individualized basis. We still get to make that individual determination.”

The good news is that for most Americans, particularly vaccinated populations in highly vaccinated areas, live events remain viable and, with proper precautions, safe. Just think of it as a “new” normal, not “back to” normal.