How is it decided whether a doc will be covered by special rates for E&O?

Posted by Grant Patten on Jun 16, 2021 8:06:38 AM

How is it decided whether a doc will be covered by special, reduced rates for E&O insurance?

How is it decided whether a documentary will be covered by special, reduced rates for E&O insurance?Source: Shutterstock, 1746536957 Royalty-free stock photo

Members of the Documentary Organization of Canada (DOC) have access to an insurance program with special rates designed for Canadian documentary producers. Film producer’s errors & omissions (E&O) coverage is included in this program.

It is important to note that the insurance company (insurer) does not necessarily see each documentary project as one and the same, in terms of risk. Some projects are going to be seen as riskier than others and each insurer has a different “risk appetite” when it comes to the types of projects they are insuring. Therefore, it is useful for producers to keep certain things in mind from the beginning of their project, while they are still finalizing the budget, to make sure there are no (or fewer) surprises re: E&O.

Note: The insurer, not Front Row (we’re the broker), lays out the parameters of the film producer’s E&O insurance program.

Projects that do NOT fall under the DOC E&O program pricing:

  • Controversial and/or mean spirited (g., investigative, intended to “expose” someone; this can be seen as contentious)
  • Docudramas
  • Productions with US counsel
  • Productions depending on fair use/fair dealing as a defense
  • Productions that have previously aired

Note: this does not necessarily mean that Front Row cannot cover the above projects, but that there may be an additional cost above the reduced E&O pricing for DOC or that this business may have to be placed with another insurer.

Fair dealing relates to exemptions under the Copyright Act in Canada; fair use is the US legislation. It is assumed by many producers that fair use provides more leeway in terms of what is allowed. This is not always an accurate assumption. Many lawsuits have arisen over this assumption and there has not been much consistency in these rulings. This can be especially problematic when a producer is relying on fair use arguments, but they have a Canadian lawyer. The Canadian lawyer might not be up to speed on all the fair use-related cases that are developing in the US. We always recommend that producers first talk to their clearance lawyer(s) to gather their feedback before purchasing E&O insurance.

Get Producer’s E&O Insurance | Errors & Omissions Insurance for Producers | DigiGear Insurance | Film Equipment Insurance

If you’re a member of DOC, you can access insurance coverage at a cost that is much lower than an individual documentary producer can normally obtain when purchasing insurance coverage on his/her own. Get a quote here.

If you’re not a member of DOC, you can still request a quote for film producer’s E&O.

Documentary filmmakers/producers may also wish to consider:

  • Short-Term Film Insurance (Canada): provides coverage for up to 15 consecutive days of shooting, with no minimum premium. The coverage is available online 24/7. Covers rented gear, rented locations, rented props, sets, wardrobes, and more. Quotes are free. If you’re in the US, get a quote here.
  • DigiGear Insurance (Canada): custom equipment insurance for owners of: cameras, sound and lighting gear working in the film/TV industry. Also available online. Quotes in 2 minutes. Policy available in 5 minutes. Shop from your phone. If you’re in the US, get a quote here.
  • Legal expense insurance provides you with financial coverage for a variety of potential legal events and provides unlimited access to a general Legal Helpline.

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About: Front Row Insurance Brokers Inc. is an independent insurance broker that specializes in the entertainment industry – specifically, the film industry. Front Row has 50+ staff in 8 offices that have a combined 530+ years of experience. Front Row is the largest film insurance broker in Canada. Front Row works hard to provide insurance protection at a low cost. Should a claim occur, Front Row works diligently with clients and insurers to expedite the payment of claims. Offices in: Toronto, Vancouver, Montreal, Halifax, NY, Nashville and LA.

Related posts:

Fair dealing (Canada) vs. Fair use (US)

Title searches/title reports

Clearance reports

eBook: E&O Insurance 101

DISCLAIMER: Informational statements regarding insurance coverage are for general description purposes only. These statements do not amend, modify or supplement any insurance policy. Consult the actual policy or your broker for details regarding terms, conditions, coverage, exclusions, products, services and programs which may be available to you. Your eligibility for particular products and services is subject to the final determination of underwriting qualifications and acceptance by the insurance underwriting company providing such products or services. This website does not make any representations that coverage does or does not exist for any particular claim or loss, or type of claim or loss, under any policy. Whether coverage exists or does not exist for any particular claim or loss under any policy depends on the facts and circumstances involved in the claim or loss and all applicable policy wording.


Q&A Web Conference for DOC Members May 27 2021, Front Row Insurance/DOC Canada

Topics: Film Producer's E&O Insurance, Documentary Insurance, Script Clearance reports, Docudrama insurance, Fair Use Doctrine, Legal expense

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?


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.



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

E&O: Are There Different Things Needed for a Documentary vs. a Drama?

Posted by Remy Khouzam on Dec 16, 2019 11:43:55 AM

E&O: Are There Different Things Needed for a Documentary vs. a Drama?

Remy Khouzam (Lawyer)
: From an errors and omissions (E&O) perspective, you have to look at the project based on what challenges it presents. So, a documentary will have different legal concerns than a drama.

E&O Insurance and Documentaries

For documentary, we’ll mostly be looking at privacy issues, potential defamation issues and – more and more now – just because budgets are being cut and the price of archives is going up – filmmakers are using the copyright exception of fair use (fair dealing under Canadian law) to use clips, lawfully, without having to clear them with rights holders. So, obviously, this brings some challenges from a legal perspective that are not exclusive to documentary but clearly appear more in documentary settings than they do in fiction.

E&O Insurance and Fiction Films

For fiction, most of it will be based on copyright issues, trademark and consideration as to what the characters are saying because you could cross that line into defamation. Those would be the major differences – you cover all legal bases but the emphasis is put on different areas, depending on the nature of the project.


About: Lussier & Khouzam is a Canadian law firm specialized in Arts and Entertainment law. Visit their website at

Topics: Film Producer's E&O Insurance, Documentary Insurance, Script Clearance reports, Defamation insurance, Trademark, Fair Use Doctrine

Fair Use Misconceptions and Filmmaker E&O Insurance Part II

Posted by Casey Budden on Oct 24, 2018 12:52:59 PM


Fair use part 2

Applicable to US-based producers only. For a discussion of fair dealing (Canada), click here.

Not all uses of copyrighted material in your documentary will require you to obtain permission from the copyright holder. If you can argue that your use of the material in question meets the criteria to be considered fair use, it may be acceptable.

However, if you’re still not sure how to figure out if your chosen use of the material will pass the test or not; there’s still a lot of grey area. Below, we will attempt to shed some light on some common misconceptions about fair use.

  • If I only use a few seconds of the underlying work, I should be okay.” The logic behind this is easy to follow and, as discussed in our previous article, there is some truth to it. The more you borrow from a previous creator, the more likely a lawsuit—it’s more likely the rights holder will take notice, and more likely that they’ll feel their commercial interests have been impaired. However, the proportion of the original work that is used is just one of a myriad of factors a judge would consider in the event of a copyright dispute.
  • “I got it from the Internet, so it should be free to use.” This misconception is less common than it used to be, but still exists. In its early days, the Internet was thought of as a kind of “Wild West” where the traditional legal frameworks didn’t necessarily apply. Today, as the Web becomes more sophisticated and ubiquitous, we know that’s no longer true. The general legal understanding now is that the moment a work is fixed in a particular creative medium, copyright exists. For example, technically speaking, a copyright exists the moment a person takes a photograph. For that reason, when making use of copyrighted material from the internet, the documentary filmmaker must exercise a level of care equivalent to that used when considering the use of any other type of copyrighted material.
  • “I’m using copyrighted material, but it’s okay because I gave credit to the author.” It may seem like this is just common sense—how could anyone claim that you’ve ripped off their work if you openly attribute it to them? In reality, this is not an automatic defense. In fact, a court of law could argue that by giving credit to the author, you are implicitly acknowledging that the material in question belongs to them. Without knowing it, you may also be tacitly validating their claim of ownership (and potentially their claim of infringement). This is not to say that giving credit to the owners of copyrighted material is not the right thing to do (it is), just that doing so in itself is not a complete defense against claims of copyright infringement.
  • “I need to ask permission from the copyright holder first.” Referring back to #3 above, you’ll recall that a rights holder might actually interpret your request for permission, in itself, as a sign that infringement has taken place (“if you’re asking me for permission, you already know you don’t have the right to use it”). Another perfectly logical assumption that does not necessarily hold in the complicated landscape of copyright issues. If your use of the copyrighted material in question already falls within the definition of fair use, you are not required to obtain permission from the rights holder first.

Sound complicated? It is. As we’ve shown, although the law does provide some latitude for documentary filmmakers to use copyrighted materials in a new creative work, there are a lot of issues to consider. An understanding of fair use is an invaluable tool for the documentary filmmaker, but is not sufficient to keep your production safe. You’ll also need an errors & omissions (E&O) policy which will ensure you’re covered in the event that you missed something. Contact us.

Part 1

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

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

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


Applicable to US-based producers only. For a discussion of fair dealing (Canada), click here.

“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?

Fair useThe 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.

Part 2



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 Producer's E&O Insurance, Multimedia Risk Insurance, Fair Use Doctrine