E&O: Acquire proper permission before you eat at McD****** or drink a C***

Posted by Doran Chandler on Mar 20, 2012 3:02:00 PM


It happens more often than you might expect: a producer completes a film, locks picture, makes a sale, and then drops by our law office to inquire about “clearing” the film for Errors & Omissions insurance coverage. In reviewing the film, we note that the producer filmed copyrighted and trademarked material, but failed to get the necessary permission to include it in the film.

E&O insurance policies insure against claims arising from accidentally infringing a copyright or trademark, invading someone’s privacy or otherwise getting tripped up on someone else’s rights. In order to qualify for E&O coverage, the film in question must be fully cleared and the producer must acquire all necessary permissions from third parties whose rights might otherwise be infringed. If a film includes material that potentially infringes a third party’s copyright and permission has not been acquired, there are a number of options to consider.

First, the film could be edited to remove the offending material. This is only a viable option if time, finances and/or creative willingness permit. Second, there may be an exception allowing the inclusion of certain copyrighted material in the film without permission.

Likely the most popular excuse for copyright infringements is the concept of “fair use”. Although referred to regularly in industry reference materials available here in Canada, fair use is a US principle based on the belief that it is not “fair” to find every copying to be a violation of copyright law if such copying was for certain purposes, including criticism or review. (For example, the concept of “parody” falls under fair use in the US and has provided many a filmmaker with substantial sources of otherwise protected material. Thank you Mel Brooks and Mike Myers!)



Fair use does not exist in Canada and is often used interchangeably, and often confusingly, with “fair dealing”, the concept found in the Canadian Copyright Act. Other than in very clear-cut cases, extreme caution must be used in relying on fair dealing, which is a very limited defense as the use of the material must be for “private study, research, criticism, review or newspaper summary”. Unfortunately, because there are no hard and fast rules available, it is impossible to define what is and is not fair dealing.

Other than fair dealing, in Canada, the concept of “incidental inclusion” may provide another possible exception to copyright infringement. If the use of copyrighted material is very minor and is incidentally and not deliberately included, (for example, a pre-existing credit card door sticker at a retail location), it is likely that the use will fall within incidental inclusion and will not be considered an infringement. It can become prohibitively expensive and time consuming to clear every protected item in a film, no matter how small the use.

If E&O insurance is required, and if none of the above options is feasible, in some cases it may be possible to “exclude” the offending material from the E&O insurance policy and effectively assume the risk yourself. (Be aware, however, that these types of exclusions may not be acceptable to broadcasters and distributors.)

The bottom line? Always, always, always ensure that you acquire all necessary permission to include any protected material in your film before you start shooting.

Tags: Film Insurance, Film Production, Film Production Insurance, Entertainment Insurance, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Film insurance broker, Entertainment Insurance Broker, Multimendia Risk, Multimedia Risk Insurance, Film Insurance claims, Film Production Insurance Premiums, Film Producers, TV and Film Producers E&O Insurance cost, Canadian Insurance Broker, Canadian Insurance, Canada Film Broker, E&O

Helicopter Film Insurance: Protect your production against a crash

Posted by David Hamilton on Mar 19, 2012 11:03:00 AM

Film productions often use helicopters for aerial filming. This 30 second video shows a spectacular helicopter crash during a production in Asia:


To make sure you are covered when using a helicopter during your film production you should never sign a contract with respect to the use of aircraft without first having our office, or a specialized Film Insurance Broker, review the document.

If the aircraft is being used as a prop/set and is not in motion, then insurance for damage to the aircraft itself would be provided under the Prop/Set/Wardrobe coverage subject to policy limits, and liability Insurance coverage would be provided under the Commercial General Liability policy. However, if the plane is in motion either under its own power or being propelled by any other means (i.e. being towed) then coverage may be compromised and special non-owned aircraft insurance / aerial liability coverage may be needed.

We recommend the following guidelines when you require helicopter film insurance:

a) Require the company from whom you are renting/leasing the aircraft from to add the Production Company as an additional insured to their insurance policy.

b) Request a waiver of subrogation   with respect to hull damage.

c) Request that their policy contains a Cross Liability Clause

d) Request that their policy includes coverage for passengers.

e) Request a Certificate of Insurance showing the limits of coverage and confirming that items a, b, c, and d have been included in their insurance coverage.

f) Obtain a Hold Harmless Agreement from the owner of the aircraft. This should be included as part of your rental agreement. Legal counsel should assist with this agreement.

Aircraft Questionnaire:

If any aircraft are hired, we will have to arrange Non-Owned Aircraft Liability coverage protecting your legal liability for bodily injury and property damage to hired parties arising out of the use of the aircraft. In order to arrange this coverage, we will need the following information:

1. Exact dates of use

2. Location

3. Owners Name

4. Description of the aircraft, including registration number

5. Name of the pilot and number of hours experienced in aircraft

6. Details concerning filming activities, i.e. storyboard

7. Number of persons in aircraft at any one time and relationship to the production company

8. The seating capacity of the aircraft

9. Value of hull if Hull Insurance is required on the aircraft.

Alternatively, the production company can be added as an Additional Insured to the Aircraft Owners Hull and Liability Policy. Please call for details.


Tags: Film Insurance, Film Production Insurance claims, Film Insurance claims, Film Equipment, Aircraft Insurance, film with helicopter, helicopter film insurance, helicopters for aerial filming, aerial liability, non-owned aircraft insurnace

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