Kailin Che

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Does film producer's E&O insurance protect against claims of breach of contract?

Posted by Kailin Che on Apr 21, 2020 8:00:30 AM

DOES film producer's E&O INSURANCE PROTECT AGAINST CLAIMS OF BREACH OF CONTRACT?

WHAT TO KNOW ABOUT IMPLIED-IN-FACT AGREEMENTS | IMPLIED CONTRACTS | IMPLIED TERMS

E&O INSURANCE FILM | ERRORS AND OMISSIONS INSURANCE FILM:


Kailin Che (Lawyer)
: An E&O policy does not cover claims relating to breaches of contract, e.g., if a producer breaches a contract provision with a writer, that won’t be covered by E&O insurance. There is a narrow exception to this rule and that’s in implied-in-fact agreements; those will be covered by E&O insurance.

So, a producer must assess whether or not there were any implied contracts that were established through conduct. Often, people think submission of an idea is sufficient to constitute implied-in-fact contracts; that’s not correct.

there are two clear requirements for establishing implied-in-fact contracts:

  1. the person who is sharing the idea must express the expectation to be compensated prior to sharing or if they share the idea.
  2. the recipient, e.g., the producer must know that there is this expectation of compensation and then voluntarily accepts the receipt of the idea.

So, in terms of limiting your potential liability in an implied-in-fact agreement, it’s possible if a producer ensures that every person who comes before them to submit any sort of idea signs an Idea Release Submission Form. [template credit: Early Sullivan Wright Gizer & McRae LLP]

 

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About: Kailin Che is a corporate/commercial lawyer who represents clients in a broad range of industries including, technology, entertainment, manufacturing and real estate. She has advised clients on a variety of endeavors, including mergers and acquisitions, financing, reorganizations, corporate governance and regulatory compliance. Kailin began her legal career at a global law firm in Toronto and is licensed to practice in both Ontario and British Columbia.

Topics: Film Producer's E&O Insurance, Film Insurance claims

E&O considerations for US-based filmmaker vs. Canada-based filmmaker

Posted by Kailin Che on Apr 17, 2020 11:07:17 AM

Fair use vs. fair dealing

Are there different e&o considerations for a US-based filmmaker vs. a Canada-based filmmaker?

E&O INSURANCE FILM | ERRORS AND OMISSIONS INSURANCE FILM:


Kailin Che (Lawyer)
: There are definitely differences in the applicable laws affecting E&O considerations between US and Canada. A lot of these are nuanced, but to give you an example: we’re talking about exceptions under copyright infringement as set forth by the fair use doctrine and so in the US, the fair use doctrine is a lot broader than the Canadian fair dealing doctrine equivalent.

Copyright and fair use:

Under the US copyright law, they have a non-exhaustive list of potential purposes that could be used as an exception, e.g., if it’s a comment or criticism, or for the purpose of news reporting, these are all things that would NOT constitute an infringement on copyrighted material.

Fair dealing copyright | fair dealing guidelines | fair use fair dealing:

In Canada, we have a similar provision but an exhaustive list. So, it is limited to private study research, parody and satire, etc. So, the consequence of this is that, for producers, they might potentially be found to have infringed on copyrighted material in Canada, but perhaps they’re not infringing in the US.

So, that said: most people who are making films are distributing in Canada and the US anyway, so it’s important to be compliant with both sets of laws and regulations. And, typically, if you buy insurance in the US, it’ll cover Canada as well.

 

Related:

About: Kailin Che is a corporate/commercial lawyer who represents clients in a broad range of industries including, technology, entertainment, manufacturing and real estate. She has advised clients on a variety of endeavors, including mergers and acquisitions, financing, reorganizations, corporate governance and regulatory compliance. Kailin began her legal career at a global law firm in Toronto and is licensed to practice in both Ontario and British Columbia.

Topics: Film Producer's E&O Insurance, US Film insurance broker, Fair Use Doctrine

How does an E&O clearance process protect against claims of libel?

Posted by Kailin Che on Mar 13, 2020 7:40:38 AM

How does an e&o clearance process protect against claims of libel and slander?

WHAT TO KNOW ABOUT E&O INSURANCE AND LIBEL / SLANDER / DEFAMATION

E&O INSURANCE FILM | ERRORS AND OMISSIONS INSURANCE FILM:


Kailin Che (Lawyer)
: Depending on the policy, E&O insurance should also provide defense and indemnification for claims relating to defamation and in order for a defamation claim to exist, there must be a defamatory statement that’s been published to a third party relating to a specific person and it must be construed as defamatory for a “reasonable person”/outside party.

Typically, a statement can be considered defamatory if it has the tendency to lower a person’s reputation in the community. But defamatory statements aren’t limited to what’s expressed in words; it can also be expressed by photography or even cartoons.

The general rule is that you’re only responsible for the defamatory statements that you publish; e.g., if you publish a defamatory statement and someone else republishes your original statement, any damages relating to this publishing of a defamatory statement will be attributed to the republisher and not to the original author of the statement. With that said, there are always exceptions.

 

Related:

About: Kailin Che is a corporate/commercial lawyer who represents clients in a broad range of industries including, technology, entertainment, manufacturing and real estate. She has advised clients on a variety of endeavors, including mergers and acquisitions, financing, reorganizations, corporate governance and regulatory compliance. Kailin began her legal career at a global law firm in Toronto and is licensed to practice in both Ontario and British Columbia.

Topics: Film Producer's E&O Insurance, Film Insurance claims, defamation insurance