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

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

E&O Insurance: copyright infringements

Copyright infringements

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.



E&O Insurance 101 & How to Protect Your Film Project

E&O: What You Need to Know

E&O: Cost

Are you paying for the coverage you need?

Steps to Obtain

Producer Errors and Omissions

E&O: Reviewing Scripts

Distributor Errors and Omissions

Documentary E&O Insurance

Copyright Reports

How much of your film is copyright-able?

Copyright Infringements

Title Reports

Script Clearance Reports

Clearance Procedures

Claims Made vs. Occurrence

Fair Use

False Light Accusations

The value of a lawyer

To get or not get permission: The Social Network

A production lawyer's guide to obtaining E&O insurance and preventing litigation

Topics: Film Insurance, Entertainment Insurance, Film insurance broker, Film Production, Film Producer's E&O Insurance, Multimedia Risk Insurance, Film Insurance claims, Film Producers, film insurance premium

Helicopter Film Insurance: Protect your production against a crash

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

Helicopter filming

Film productions often use helicopters for aerial filming

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.

Guidelines for helicopter film insurance:

  • 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
  • Request a Waiver of Subrogation with respect to hull damage
  • Request that their policy contains a Cross Liability Clause
  • Request that their policy includes coverage for passengers
  • 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
  • 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 Insurance 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.

Image credit: The above image is a work of a sailor or employee of the U.S. Navy, taken or made as part of that person's official duties. As a work of the U.S. federal government, it is in the public domain in the United States. This file has been identified as being free of known restrictions under copyright law, including all related and neighboring rights. This Image was released by the United States Navy with the ID 021220-N-7590D-025

Topics: Film equipment insurance, Film Insurance, Film Insurance claims, Aircraft Insurance