By: Doran S. Chandler - Roberts & Stahl, Entertainment Lawyers
Whenever a producer or writer dreams up a new idea for a television show, it doesn't take long for them to start worrying about someone pinching it and beating them to the punch. This is especially true in the case of news programs, game shows, and other reality based productions. Such productions are relatively inexpensive to produce and consist mainly of material with a questionable footing in copyright. This makes it accessible to a large number of producers and difficult to pitch and develop without tipping off competitors about a potential new trend.
A somewhat odd corollary to this is that the value of television formats has grown exponentially in recent years with the widespread licensing of formats to broadcasters or production companies in foreign markets. As a result, many producers want to know what they can borrow from existing programs, and whether they can protect what they have created. Only one notable Canadian case, Hutton v. Canadian Broadcasting Corporation, sheds some light on the issue.
In Hutton, the Alberta courts considered whether the format of a music video magazine show could be copyrighted. The courts held that concepts and devices generally present in shows of the same genre were not protect-able, such as the mood of the hosts, the presentation of biographical materials, interviews, and the use of TV monitors in the set design. The courts also considered the use of infinity shots, bumpers and teasers to commercials, the use of montages, and the use of transitions like dissolves and back-to-back video playbacks, finding that these elements could not in themselves be protected. One characteristic the trial court found protect-able at trial were elements of "dramatic conceit" in the programs, or the entertainment fictions used to create drama in each program. The trial judge ultimately found that the plaintiff's show, Star Chart, was not a dramatic work within s.2 of the Copyright Act and thus not capable of being copyrighted. On Appeal, the Alberta court deemphasized the idea that dramatic conceit was protect-table and held simply that the works were not qualitatively similar and did not have any causal connection between them.
The end result of Hutton is that, while we have some idea about what Canadian courts will consider when evaluating a format, we don't really have a clear guideline for what is required to achieve a protect-able format. Adding to the uncertainty is that different standards of protection have emerged in other jurisdictions. In one case considering the copyright-ability of the format for Opportunity Knocks, a prominent UK copyright judge held that the elements of a "dramatic format" were too uncertain for copyright protection.
Meanwhile, courts in Holland and Brazil have granted protection to the Survivor and Big Brother formats, respectively, finding that copyright can subsist in the meticulous combination of individually unprotect-able elements in a format. Together, these decisions leave producers intending to rely on a specific format on shaky ground. Given that the legal right to use or to keep others from using a given format is unpredictable at best, it is a good idea to take some precautions when developing a show. One important security measure is to pitch your concept formally in conference using confidentiality agreements. Another useful precaution is to document and distinguish your concept with as much detail as possible, including the use of specific music, timing, camera angles and set design.
Registering distinctive slogans and catch phrases with the trademark office can offer protection, as can registering your detailed synopsis with the copyright office. Lastly, advertise your production as aggressively as possible because a strong market presence will always attract more copyright protection than anonymity.
- Robert Galletti
- Choose your post facility wisely. If you are searching for a Post Production studio to purchase, check to see if it is located in a flood zone: do a background check to see how often flooding has occurred in the past. Look for tell-tale signs of water damage, or high water lines on the outside (or inside) of the building. Be advised that if you are in a flood zone, you may find it more difficult to get insurance for your building.
- If you are living in a flood zone, one thing you can do is to construct levees around your building to direct flood waters around, and away, from your building. Alternatively you can ensure that there is adequate green space around your building to absorb excess water.
- If you are building on a floodplain, you can have your building raised up in order to reduce the risk of flood waters entering. You can also reinforce an existing building by adding weather stripping around all of the entry ways and can install a sump pump.
- Replace any leaking fittings or drains immediately, even if small.
- Many commercial building roofs have HVAC equipment, vent pipes, skylights and other building system elements that make this area vulnerable to water intrusion.
- Inspect windows from the inside for glass and air seal integrity.
- Store important and valuable documents where they will not get damaged.
- Create a systematic maintenance schedule along with a written plan of equipment and systems.
- Develop an emergency response plan so that in the event of a leak, damage is reduced and there is a faster return to normal operations.
- Install backflow valves or plugs for drains, toilets and other sewer connections to prevent water from entering the property.
<script type="IN/FollowCompany" data-id="380438" data-counter="none"></script>
By: Doran S. Chandler - Roberts & Stahl, Entertainment Lawyers
Entertainment lawyers are often called upon to help clients obtain Errors & Omissions insurance for their productions. This job is easy if the needs of E&O insurers are considered before production begins. However, the process can be difficult and time-consuming if no thought is given to E&O coverage until after the final cut is locked.
E&O Insurance covers claims against a production, including breach of copyright or trademark, breach of privacy, defamation and breach of contract. These claims do not usually surface until there has been a broadcast or exhibition of the production.
E&O coverage is not included in the standard production insurance that is taken out for injuries, damage to property, etc. Only occasionally do you hear about the types of claims for which E&O insurance provides protection. For example, an action was brought several years ago against Dreamworks by an author who had written a book about the events depicted in the feature film Amistad. The author claimed that her copyright had been breached because the film told the story in ways which were similar to the book. More recently, one of the characters depicted in the recently released feature film Boys Don’t Cry has brought an action for breach of privacy because of the manner in which her life was depicted.
But most claims do not make headlines; usually they are threatened and then settled. Even if your insurer is ultimately successful in defeating a claim, it can still be costly because of the legal fees involved. And even if a claim is settled, the producer generally pays.
There are only a small number of insurers who provide E&O insurance to the entertainment industry. These policies are sold by specialized agents who are familiar with film and television production. If you have been involved in producing a documentary or television production, you have probably filled out the lengthy forms involved in making an E&O application. The application tells the agent how far along you are in the production and what the problem areas are likely to be, but it also serves as a handy checklist for you. Once the application is received, the agent will provide you with a quote and hand it over to lawyers who provide advice to the insurer about the risks involved with the production. The insurer will have its lawyer contact production counsel to review the potential problem areas and to discuss how these will be addressed.
The advantage of having your lawyer speak directly to the insurer’s lawyer is that often E&O insurance can be approved with a single phone call. The disadvantage from a lawyer’s perspective is that you sometimes end up doing the insurer’s dirty work by telling a client why certain material can’t be used. Because the insurer’s lawyer relies on production lawyers to decide whether to grant insurance, your lawyer is obliged to identify problem areas. If they do not, you (and the broadcaster) could end up being liable for the omission and your lawyer’s credibility can be affected.
If you are a US Insurance Broker that has a client with a Canadian subsidiary, Canadian tax law requires that:
- The policy must be issued by a licensed Canadian insurer
- The premium must be paid by the Canadian subsidiary directly to a licensed Canadian broker who then must pay the Canadian insurer.
- If an unlicensed insurer is used, Provincial tax penalties may be as high as 50% of the premium and an additional Federal tax of 10% of the premium will also be levied
A US Insurance Broker that does not hold a license in Canada will not be able to place business with a Canadian insurance company. Furthermore a US broker that does not hold a Canadian license is not allowed to provide insurance advice to a Canadian company – even if it is a subsidiary of a US parent company. To do so will incur a premium tax and penalties that are payable by the subsidiary.
A broker licensed and domiciled in Canada will make sure that your client complies with all insurance regulations so that the policy will respond when required. A Canadian Entertainment Insurance Broker will also ensure that the premiums qualify for any applicable tax credits.
This article explains the law well and in detail l and that the CRA (the equivalent of your IRS) is being stricter about enforcing it- http://www.canadianunderwriter.ca/news/excise-tax-extends-its-reach/1000405882/.
At Front Row, we would be happy to assist you insure your subsidiaries inCanada. Ask us how.
Please contact David Hamilton: 604-684-3456 or e-mail firstname.lastname@example.org