Fair Use and E&O Insurance for Filmmakers - Part 1

Posted by Casey Budden on Oct 24, 2018 12:48:02 PM

 

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FAIR GAME? - A FAIR USE PRIMER FOR DOCUMENTARY FILMMAKERS (Part 1)

“If I have seen further, it is by standing on the shoulders of giants.” –Isaac Newton

As a documentary filmmaker, you’ll likely need to make use of copyrighted materials at some point in your production. Indeed, it’s almost impossible to avoid: film clips, music and archival interviews are indispensable tools for lending depth, color and authority to your production. However, securing the rights to such materials can be difficult, prohibitively expensive and, most importantly, fraught with potential danger if the rights holders feel that their copyright has been infringed.

For example: you’re making a documentary about Hammer Horror films of the ‘50s and you use a short clip of Christopher Lee baring his fangs. You haven’t obtained permission. Will you be sued?

The legal doctrine of Fair Use permits creators a degree of freedom to incorporate copyrighted works of others into a new creative work. The law recognizes that the rights of copyright holders to enjoy the profits of their creations must be balanced with the rights of creators to enjoy freedom of expression and build upon past works in the creation of their own.

The problem that can sometimes occur is that it can be very difficult to define what constitutes fair use, and rights holders can be aggressive in defending their copyright.

Navigating fair use can be a challenging proposition. It is particularly important to the documentary filmmaker due to the fact that documentarians usually need to use more copyrighted material than, say, the director of a period piece.

There are two important things that you can do as a documentary filmmaker to keep your production safe: understand Fair Use, and purchase Errors & Omissions Insurance. The first will help you avoid being sued; the second will help protect you if you are.

Understanding Fair Use

You want to use a short clip of music or film in your documentary. You might have a limited budget. Traditional wisdom dictates that every piece of copyrighted material needs to be cleared and paid for, but this may not be the case if you can argue that your use of the clip in question constitutes Fair Use. How do judges determine if the use of a given clip is Fair Use in any given situation? The following criteria are considered.

  • What purpose the material is used for. Courts generally hold that a use of copyrighted material which is “transformative” meets the criteria to be considered Fair Use. “Transformative” means that the material is made part of a new creative work, for a purpose and context which are different than the original.
  • The nature of the source material. Factual, non-fiction source material which was created for an academic or educational purpose, with the intention of being strictly informative in nature, is less likely to give rise to a copyright claim if it is presented appropriately.
  • How much of the source material was used. The more of the original work is used, the more likely a lawsuit becomes. For example, musicians are more likely to encounter a problem using a lengthy musical phrase copied from a prior artist than they would be using a single breakbeat or horn blast which may no longer be recognizable as part of a prior creative work.
  • How the use of the source material impacts its value. If the rights holder can argue that their profits, potential profits or the integrity of their brand have been impaired by another’s use of their material, it may provide grounds for litigation. For example, a documentarian making a film about Miles Davis might get away with showing a brief clip of Miles playing, but reproducing an entire 15-minute live performance of him is likely going to attract a lawsuit.

 

Armed with this information, you might think that these rules are just common sense, and with an abundance of caution a prudent filmmaker might be able to avoid the possibility of a lawsuit. However, the reality is not so simple. The second part of this article will discuss some common fair use misconceptions.

Tags: E&O Insurance for producers, producers errors and omissions quote, media liability insurance policy, Digital E&O insurance, Fair Use for Documentaries

Protecting your script with Producers E&O insurance

Posted by David Hamilton on Oct 2, 2018 2:27:48 PM

Ensure Your Story is Told. Protect your Script.

Your team has recently secured the rights to a popular book, and you’re ready to make it into a feature film. You’re excited to get started bringing the concept and promise of the book to life, and you hire a respected screenwriter to adapt the book for the screen. You’re working on revisions when suddenly a letter arrives from another screenwriter who claims that he pitched a very similar script to the director not long ago.

All of a sudden, things aren’t going to plan...

Legal counsel to defend such cases is costly, and even if the matter is resolved without a lawsuit it will still drain valuable time from your production schedule.

No amount of preparation can totally eliminate the risk.

That’s why even when you know you’ve covered your bases, you still need insurance to protect you if something goes wrong. That’s where Errors & Omissions insurance (“E&O”) can help.

Among other things, it offers protection against:

  • Claims of plagiarism
  • Libel/slander accusations
  • Accusations of defamation of character or invasion of privacy
  • Lawsuits arising from alleged unauthorized use of
  1. Titles
  2. Formats
  3. Ideas
  4. Characters
  5. Plots

The policy will pay for legal defense if a third party sues you for the above reasons, even if the claim has no merit, and provides peace of mind after your initial due diligence is completed. Finally and perhaps most importantly, many distributors require that you have this coverage in place prior to greenlighting release of your film.

Don’t let your film get derailed before it even gets on track; contact us to ensure you have the right coverage.

Tags: screenwriters, E&O Policy for producers, E&O Insurance for producers, producers errors and omissions policy

E&O Insurance for Producers: Minimizing the Risk of Unsolicited Submissions Claims

Posted by David Hamilton on Jul 21, 2015 10:04:38 AM

Here are some ways to prevent a Film Producers E&O insurance claim:

  1. Refuse to read scripts, story concepts etc. without getting a written waiver of any future claims by the cultureONE-image-filmtvwriter.
  2. All submissions are held (preferably unopened) by clerical staff until they send out a release form and get back a signed copy.
  3. Maintain good record keeping systems of what submissions have come in, who saw them, and how they were handled.
  4. Limit the number of people who actually review these projects.
  5. Be careful how you respond to submissions.
  6. Keep track of where the project ideas come from and when.    

An example of a potential claim:  plaintiff sues producer for copyright infringement.  Alleges that movie being produced is based on a script submitted to the producer years before that was rejected.   Producer made notes throughout the script recommending changes and plaintiff believes these changes are consistent with the movie. The amount claimed was not specified.

The producers errors and omissions policy will provide a lawyer and pay the legal fees to defend the producer that purchased an e&o policy for producers. 

If you would like a no obligation Producers E and O insurance quote, please click here.

Front Row is an independent film insurance broker that works on behalf of filmmakers to transfer the risks of filming to insurance companies for the lowest possible cost. Front Row makes sure that filmmakers receive their claim money quickly. Front Row has offices in Vancouver, Toronto, Montreal and Los Angeles.

Tags: E&O Insurance, Producers E&O Insurance, E&O Insurance for producers, E&O Insurance quote

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