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

E&O Insurance: 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.

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

A Canadian Insurance Broker Needed to Avoid Potential Tax Penalties

Posted by David Hamilton on Feb 7, 2012 2:55:00 PM

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- https://www.canadianunderwriter.ca/features/excise-tax-extends-its-reach/.

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 david@frontrowinsurance.com

Topics: Film Production Insurance, Entertainment Insurance, Entertainment Insurance Broker, Film Production Insurance Premiums, Errors and Omissions coverage for films, Canadian Insurance Broker, Canadian Insurance, Canada Film Broker, directors & officers liablity, Documentary Insurance, Front Row Insurance Brokers, Documentary Films, DICE Insurance, Film Production Companies, Front Row, US Insurance Broker

What is a DICE Policy? - Let Front Row Tell You

Posted by Meghan Stickney on Oct 29, 2009 4:20:00 PM

DICE INSURANCE: DOCS, INDUSTRIAL, COMMERCIAL, EDUCATIONAL FILMS

This is a great insurance policy to save you time and money if you anticipate multiple projects in the next 12 months.

Click here to apply online

Excludes*:

- Feature Length or Theatrical/Television Release over $150,000 budget

- Television Series or Episodes

- Productions with shooting periods +90 Days

(*unless specifically endorsed and in some cases an additional premium applies)

  • A DICE policy provides prearranged coverage for a year for your office and all of your productions--except for features and series with budgets over $150,000.
  • We will give you blank certificates for the year, allowing you to lock locations and rent equipment on the fly.
  • General Liability is less expensive with an annual policy as you only pay for it once per year and it covers all of your projects in a 12 month period. Less work and cost than arranging coverage for each of your projects.

A typical package for a Canadian producer with up to $250,000 in annual productions costs is as follows: 

 COVERAGE  
 LIMIT  $  
 Negative Film/Videotape   250,000
 Faulty Stock, Camera & Processing     250,000
 Props, Sets & Wardrobe  200,000
 Miscellaneous Equipment Rented  750,000

 Miscellaneous Equipment Owned (additional premium will apply)

 As Required
 Property Damage Liability  2,000,000
 Extra Expense  200,000
 Office Contents  100,000
 Accounts Receivable  25,000
 Money & Securities  25,000
 Physical Damage to Vehicles  150,000 per vehicle 
 General Liability  2,000,000

 
Canadian DICE Production Insurance Package Costs:

  • A deposit premium starts at $1,500.
  • Your Final Gross Productions Costs for all productions undertaken during the term of the policy are reported to the Company within 30 days following the expiration or termination of coverage.
  • The Annual Earned Premium is computed by applying the rate per $100 of actual gross production costs established at the inception date of the policy.
  • A minimum premium of $1,500 will apply regardless of the terms of coverage.
  • Premiums can be financed over the year to help your cash flow.
  • Rating will vary based on the Film/Video ratio, types of productions and number of annual productions estimated.
  • General Liability coverage (to cover locations against property damage or bodily injury caused by your crew) is extra.  For example, a $2,000,000 limit would cost $750 annually; a $500,000 limit costs $1,000 annually. 

 Click here to apply online

 Call or email us for a quote, a description of coverage  and further information.

Related Post: DICE Insurance Policies: Annual Protection for Multiple Film Projects

Topics: Film equipment insurance, Film Gear insurance, Entertainment Insurance Broker, Canada Film Broker, DICE Policy, Annual Film Insuruance, Commercial Production Insurance, Documentary Insurance, Documentary Films, DICE Insurance, Educational Films, Industrial Films