Catastrophe and Contracts (Understanding the “Act of God” Clause)

Imagine you’re sitting at home one day, making comics and minding your own business. You are working at a steady pace and you plan on finishing long before your publisher’s deadline. All of a sudden, the sky goes dark, the wind begins to howl and the lights go out. A couple days later you have no power, no water, no heat and there is a tree in your living room. On top of all that, you missed your deadline and your publisher is claiming you breached the contract. Now what?

The answer to that question depends on the force majure or “act of God” clause in your contract. If the language is written well, you shouldn’t have a problem. If the language is written poorly (or doesn’t appear at all) you might have to deal with a business dispute at the worst possible time.

What does it mean? Basically, a force majure clause extends the period of performance for the artist and the publisher if certain events occur. Most force majure clauses include events like fire, natural disaster, accidents, act of government, war, terrorism, industry wide shortages or any other event beyond your control and that directly impact you. For example, if you live on the East Coast, Hurricane Sandy probably qualifies as a force majure. If you live in Seattle, it probably doesn’t because you are not directly impacted. Keep in mind that a hangover is not a force majure, even if it does feel like an act of God when you are recovering. Getting the hangover wasn’t beyond your control, so force majure can’t save you here.

What do you have to do? When a force majure event occurs, you usually have to notify the publisher of the event’s impact on you and then follow whatever terms are specified in the force majure clause. Terms can range from an extension of time to cancellation of the agreement. While it is impossible to anticipate every potential force majure event and write a solution into the contract, it is better to have some guidelines in place that work for both sides, instead of waiting until your basement is full of water and the National Guard comes rolling in.

Often, a publisher or colleague will understand your situation during a crisis and won’t try to use it as a way to avoid paying you or to get out of your contract. However, it is always prudent to make sure there is a good force majure clause in your contract when you sign it. You never know when the lights could go out and you never know when your relationship with your publisher could fall apart.

Best

Gamal Hennessy, Esq.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.comFOR A FREE CONSULTATION.