Producers E&O: What is My Distributor and Financier Asking For?

Posted by Kent Hamilton on Apr 7, 2017 3:12:31 PM

Documentary E&O Insurance

Documentary

You sold your documentary! You met your distributor requirement of obtaining a three year E&O policy through the Front Row IDA E&O Program or Documentary Organization of Canada (DOC) Program. Congratulations!

However, you read the fine print in the contract and you’re surprised to see several requirements:

  • First, the distributor wants you to extend your policy to cover them by naming them Additional Insured in case of a claim. No problem: you just send a request and provide us with your distributors name and address. This will generate a certificate of Insurance (COI). The certificate will detail: your company name and address, what insurance company is covering you, how much insurance the project has (i.e. $1,000,000/$3,000,000), and what the retention (deductible) is (i.e. $10,000 or $25,000). You can request as many certificates  as you like under the IDA program if you make multiple sales and certs are always free.
  •  Second, the distributor wants to be covered for 5 years! You just paid a lot of money for a three year policy. Will this cost you more premium? The answer is no. There is a special endorsement that is offered on the IDA policies called a “Rights Period Endorsement (RPE) ” or “Term of Contract Endorsement (TOC)”. This endorsement will extend the length of your E&O term to match the length of your distributors agreement as long as you notify the insurance carrier prior to the expiration of your policy. Just send us your distribution contract and in the majority of cases the insurance carrier will provide you with this  money saving endorsement.

Now you can breathe easier knowing that your E&O policy is in place  to protect your company, financiers and distributors.

Producer's E&O will cover legal & judgement costs if you are found responsible for any of:

  1. Invasion or infringement of privacy
  2. Infringement of copyright or trademark
  3. Libel, slander or other forms of defamation
  4. Plagiarism, piracy or unfair competition resulting from the alleged use of titles, formats, ideas, characters, plots, performances of artists or performers or other material
  5. Breach of contract, implied or in fact or in law, resulting from the alleged submission, acquisition or use of program, musical or literary material used by the insured in the insured production

To obtain a preliminary E&O quote for your project, please  CLICK HERE

You will be requested to fill out an application and a quote will be given to you in most cases within one business day.

IDA Production Insurance packages are also available:  CLICK HERE

Please note that this is an illustration only: for a detailed outline of the E&O coverage contact us and we will send you a sample policy wording. In the event of a coverage conflict given the advice above, the policy wording would prevail.

 

RELATED LINKS:

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, Documentary Insurance

E&O Insurance for film: WHO IS INSURED

Posted by Kent Hamilton on Feb 6, 2017 11:51:54 AM

E&O Insurance for Film

You arrive home after your screening of your documentary at a well known film festival. The film was well received. You feel great! Your hard work and investment for the last five years has paid off. Your distributor is happy. But even more than that you told your  important story and exposed the truth about a difficult subject.

Film producer's E&O insurance

There is a knock at your door and a courier presents you with a registered letter. You sign and open the package and see that you, your company, your wife, your financial partner and your cameraman have been sued for libel and slander by a large, powerful company. Fear strikes! Your wife? Your investor? Your cameraman? Why would they name them on the suit?

Your mind eases when you remember that your attorney was careful to vet the production for libel and slander issues. You remember not liking the process because some great ideas and footage had to be scrapped during editing. You are glad that you engaged a specialized clearance attorney familiar with “fair use” issues.

And…you purchased an E&O policy for your company from a specialized documentary insurance broker. Wow! You catch your breath. Similar scenarios to this have been played out many times for many documentarians.

But am I personally protected under the policy? Is my wife, investor and cameraman protected? Or will those legal costs have to be borne separate from that of the company’s policy?

What should I do?

The first thing you should do is notify your insurance broker and forward the legal letter you received.

Under most normal situations: you, your company, your wife, the investor and the cameraman would all be protected under the policy.  You will also be provided with an expert claims adjuster and a lawyer paid by the e&o insurance company to defend your production through a settlement and even a court case if necessary.

To obtain a preliminary E&O quote, please Click Here.  You will be requested to fill out an application and a quote will be given to you in most cases within one business day.

Note: this is an illustration only. For a detailed outline of the E&O coverage, contact us and we will send you a sample policy wording. In the event of a coverage conflict given the advice above, the policy wording would prevail.

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

Copyright Reports: Use Them to Minimize the Potential of an E&O Claim

Posted by David Hamilton on Jul 22, 2015 3:31:00 PM

Copyright Reports

Office_Contents_Insurance

Prior to providing a Producers E&O quote, the film insurance company will recommend that you obtain a copyright report. At Front Row, we recommend that a copyright report be obtained on any book, play, etc. that the producer is buying rights to, or for any script that was not written as a work for hire by the production company’s own employees.

The copyright report is important because they make you aware of any conflicting assignments that hinder or destroy the right to use the underlying work. It is not common for someone to try to defraud you, but many owners of the underlying work do not fully understand previous option agreements or other contracts, or co-owners of the rights may already have assigned the film or TV rights to someone else.

A recent claim involved a producer of a movie sued for copyright infringement. Plaintiff alleged that her unpublished novel was the basis for the movie. 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.

Once the assignment of the film/TV rights to the underlying work is obtained, the producer should register that assignment with the copyright office. This registration will prevent someone who obtains conflicting rights from establishing a priority of rights by beating the producer to the registration procedure.

If you would like a no obligation Producers E&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 has offices in Vancouver, Toronto, Montreal and Los Angeles.

 

RELATED LINKS:

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, Script Clearance reports

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

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

Minimizing the risk of E&O Claims

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 Man holding film camerawriter.
  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.

Related Post: Claims Made vs. Occurrence Based E&O Claims

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.

Topics: Film Producer's E&O Insurance

Producers E&O Insurance: Best Practices when Reviewing Scripts

Posted by David Hamilton on Jul 17, 2015 11:40:00 AM

Producers errors and omissions (E&O)

Producers errors and omissions claims can be prevented by following the guidelines on the list below. The list is not meant to be all- encompassing, but instead it is a quick reference:

  1. Avoid the accidental use of real names of people or organizations.
  2. Avoid identifying someone by a specific job or his/her e&o insurance, scriptsinvolvement in actual events, even if the name is totally fictional.
  3. Avoid using real addresses.
  4. Don’t use real phone numbers, credit card numbers, social insurance numbers etc.
  5. Get permission for uses of trademarks and logos, and avoid references to companies or products and where possible don’t use identifiable props (eg. Photographs, paintings, posters, sculptures, magazines) that are protected by copyright, unless you get permission from the copyright holder.

An example of a potential claim: recently a plaintiff alleges copyright infringement in connection with the use of certain fine art images in a movie of the week. The amount claimed was $900,000.

Another example: A ‘sound alike’ rendition of a musician’s song was used in movie.  Musician sued for misappropriation and copyright infringement. The amount claimed was: $65,000.

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.

Related Post: Producers E&O

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.

 

RELATED LINKS:

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, Film Insurance claims

E&O Insurance Quote: Are You Being Offered The Right Coverage?

Posted by David Hamilton on Jul 15, 2015 9:56:08 AM

E&O: are you paying for the coverage you need?

If you are shopping for an insurance quote for producers E&O insurance make sure you are paying for the coverage that you need.

Piggy bank: E&O insuranceTo endure and succeed in today’s increasingly global entertainment business, video and film producers must continually keep pace with evolving technology, marketplace demands, competitors, and a changing legal landscape. Complicating the picture further is an expanding litany of media liability exposures, any of which can result in a calamitous lawsuit…from any number of sources.

Consider the financial impact on your organization if:

• A person featured in a production sued you for defamation and invasion of privacy.
• A woman who was mentioned in a production claimed that it caused her to suffer emotional distress.
• A writer, alleging a production used his storyline, sued you for copyright infringement and misappropriation.
• A theatre company sued your production company, alleging trademark infringement over a film’s title.

Even if you did nothing wrong, defense and settlement costs can escalate to hundreds of thousands (if not millions) of dollars.

One solution is Chubb’s MediaGuard E&O policy that specifically addresses the nature of these risks. Chubb has insured video and film producers for approximately 40 years, so they’ve seen producers sued over their content-related activities time and time again. They understand that in today’s constantly shifting legal landscape, the precise nature of media liability lawsuits can be difficult to predict. Unfortunately, one thing that can be predicted is the financial and reputational havoc such lawsuits can cause.

MediaGuard Highlights:

•  “occurrence form” which covers activities that occur during the policy period (regardless of when claim is first made).
• “All risk” coverage extends beyond specified “named perils” to include risks arising out of core functions of video and film production: gathering and creating information and communicating it to the public.
• Built-in merchandising coverage, including third-party licensing of any logo, symbol, trademark, or other intellectual property for use in connection with the sale of goods and services directly relating to a production.
• Built-in advertising coverage.
• Negligent publication coverage for any claim alleging harm to a person or entity that acted or failed to act in reliance upon the information published.
• Our customer fully controls whether to settle without sacrificing coverage and can choose between reimbursement of defense costs or duty to defend.
• No “insured versus insured” exclusion with respect to internal copyright disputes.
• Broad breach-of-contract carve backs for, among other things, alleged failure to attribute authorship or credit under any agreement to which the insured is a party and alleged misappropriation of ideas under implied contract.
• Punitive damages coverage, where insurable by law.
• Internet Liability clause with automatic coverage for newly created websites after the policy incepts.

Front Row Insurance Brokers can offer you a Producer's E&O insurance quote from Chubb. Click here to get a quote.

 

RELATED LINKS:

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

The Delicate Art of Making a Bio Pic without Getting Permission

Posted by Jeff Young and Tarek Elneweihi on Jun 25, 2015 9:37:22 AM

This article is written for the sole purpose of providing general legal information and education and is not intended as a legal opinion specific to the laws of your jurisdiction.

To get or not get permission: E&O Insurance & The Social Network

Can you make a documentary (OR ANY FILM) about someone without their permission?

Jeff Young

So, after seeing The Social Network you decide that you too want to make a film about a famous person’s life, but you are not sure whether you will be able to get his or her permission. Is it possible for you to go ahead and make the film without getting the individual’s permission and without getting sued?

Tarek Elneweihi

 

Well, to the surprise of some, the short answer is yes…in some cases. But while you may be among those that are surprised by this answer, it will likely not surprise you that the real answer to the question is more complicated than a simple “yes” or “no”. As with most legal issues, to comprehensively answer the question posed, a more in-depth discussion is required. 

Furthermore, while it may be possible for you to make a movie about a famous person without getting sued, there are sound reasons why getting permission may still be the right choice for you. One such reason is the possible consequence to your E&O insurance deductible, which could become much higher if you do not get permission.

In this article we will first review the legal issues involved when making a film like The Social Network, then we will look at some practical reasons for securing permission from the subject of your film, focusing on how it could affect your E&O insurance deductible.

What is a Docudrama?

Let us start by looking into what category of film The Social Network falls under, and what the law has to say about it. While The Social Network was a movie that purported to be based on facts about actual people and events, it is safe to say that it is not a documentary. In other words, rather than attempting to accurately dissect the actual historical events that the film is based on, as is the typical approach of documentaries, The Social Network utilizes some artistic license in depicting select real-life historical events in a way that is intended to be appealing to drama-loving, movie-going audiences.

So what category of film applies to The Social Network? The answer is that it is a type of biopic commonly referred to as a “docudrama”. Docudramas have been judicially recognized in a number of U.S. court cases, including the case of Seale v. Gramercy Pictures 964 F.Supp. 918 (1997), which dealt with the motion picture entitled Panther. In Seale the court stated (my underlining for emphasis):

“…the film "Panther" is best categorized under the film genre of “docudrama.” He testified that the “key” to making a docudrama is to capture the “essence” of an historical event and not necessarily to recreate for the audience every historical detail of that event.  …such major motion pictures as “Ghandi” and “JFK” are appropriately classified as docudramas.”

The court finds that the film “Panther” is a “docudrama” and not a “documentary” film. A docudrama is a “motion picture presenting a dramatic recreation or adaptation of actual events.”  [...]  It “is a dramatization of an historical event or lives of real people, using actors or actresses. Docudramas utilize simulated dialogue, composite characters, and a telescoping of events occurring over a period into a composite scene or scenes.”

Clearly, by this definition The Social Network is a docudrama.

What Legal Issues Should You Look Out For?

Generally, when making docudramas about famous personalities, the legal issues to watch out for include Rights of Privacy, the tort of False Light, Rights of Publicity and the tort of Defamation. Let us now look at each of these issues in more detail.

Rights of Privacy

The Right of Privacy is the qualified legal right of an individual to have reasonable privacy in not having his or her private affairs made known or his or her likeness exhibited to the public having regard to that individual’s habits, mode of living, and occupation. In the case of deceased individuals, their Right of Privacy dies with them. This is not the case with living individuals, such as Facebook’s Mark Zuckerberg. However, the First Amendment of the American Constitution allows docudrama filmmakers the right to make a movie about any living person without permission, so long as it does not violate his or her privacy rights or defame them.

The Right of Privacy can take several forms. For example, you cannot “out” someone in any way. In other words, you cannot reveal the private facts of someone’s life (i.e. facts that are not publicly known) or intrude into someone’s private space in the course of your filmmaking. However, if the matter is of public interest, you can reveal it. Generally, the courts have held that the more famous an individual is, the more likely the matter is in the interest of the public.

So, in the case of famous living individuals, when making a docudrama about them you must be careful not to intrude on their Rights of Privacy, while with deceased individuals you need not be concerned about such rights. We can assume that the creators of The Social Network were careful not to violate Mark Zuckerberg’s Rights of Privacy since the deep-pocketed Internet mogul has not sued them to date.

False Light

The tort of False Light is one of several torts under the category of invasion of privacy where a defendant is accused of spreading falsehoods about a plaintiff that would be considered objectionable by the average person. The film Panther, which, as mentioned above, was the focus of the case of Seale, also discussed the tort of False Light. The film integrated actors playing fictitious characters with actors playing the roles of the real-life leaders of the “Black Panther Party”, an organization that was formed in Oakland, California in 1966. The Plaintiff in the case, Bobby Seale, was the co-founder of the Black Panther Party. Seale sued on the basis that the Defendants’ portrayal of him in the film placed him in a “false light” and therefore violated his common law Right of Privacy.

In the court’s analysis of the facts of the case it was recognized that Panther did not purport to maintain strict fidelity to fact and primarily represented a work of entertainment as opposed to a fact-specific historical account of events. Hence why the court used the term “docudrama”. The court even acknowledged that there were certain scenes that were made up for dramatization, and other significant, perhaps even landmark moments in Seale’s life that were omitted. The court further ruled that during some moments in the film there were indeed elements that portrayed Seale in a “false light”.

However, notwithstanding the above, the court ruled in favour of the filmmakers based on the court’s view that First Amendment constitutional protections have higher priority. The court stated that unless Seale could prove with convincing clarity that the filmmakers acted with actual malice, then “substantial accuracy” to the facts was enough to exonerate them. It is worthwhile to note that the film did not portray or reveal any private activities of Bobby Seale that were not already in the public domain.

So, it seems that as long as you make a movie that is substantially accurate with respect to the facts of the individual’s life whom you are portraying, you can get away with utilizing the same artistic license that the creators of The Social Network made use of. This is likely why Mr. Zuckerberg did not sue the film’s producers despite the fact that he did not agree with his portrayal as a nerdy social recluse who created Facebook to make friends and become “popular”. This reason alone would likely not be enough to win a lawsuit since the writers of The Social Network used care to write a script that was substantially accurate with respect to the historical events that were portrayed.

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RELATED LINK:

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

Topics: Film Producer's E&O Insurance, rights of publicity, rights of privacy, defamation insurance, Film permission, docudrama insurance

The Delicate Art of Making a Bio Pic w/o Getting Permission (Part 2)

Posted by Jeff Young and Tarek Elneweihi on Jun 25, 2015 9:35:32 AM

Rights of Publicity

The Right of Publicity is both a statutory and a common law right to limit the public use of one's name, likeness and/or identity, particularly for commercial purposes. As opposed to the Right of Privacy, the Right of Publicity survives death. The applicable law is based on the person’s domicile when living, or where they were domiciled on the date of death.

The leading U.S. case on the issue of the Right of Publicity is Ruffin-Steinback v. Depasse 82 F.Supp.2d 723 (2000). The facts of Ruffin-Steinback involved NBC airing a four-hour mini-series depicting the musical group the Temptations as recounted in a novel written by Otis Williams, a founding member of the legendary recording group. No one other than Williams gave permission to the producers of the mini-series and so the other members of the group sued the producers. On appeal, the court ruled that the term ‘likeness’ (as relating to the Right of Publicity) does not include general incidents from a person’s life, especially when fictionalized. The narrative of an individual’s life, standing alone, lacks the value of a name or likeness that the tort requires. The court specifically held that:

“We agree with the district court that assuming each of the inaccuracies described in plaintiffs’ complaints and submissions is inaccurate in the manner described by plaintiffs, defendants’ actions in producing the story written by Otis Williams about the Temptations cannot be considered so extreme in degree as to go beyond all bounds of decency. The district court did not err in granting summary judgment on these claims.”

The court in essence upheld the earlier ruling that depicting one’s life-story without his or her permission does not constitute a violation of the Right of Publicity, barring any depictions that are “so extreme in degree as to go beyond all bounds of decency”.

Defamation

The tort of defamation involves the publication of anything false which is injurious to the reputation of another or which tends to bring them disrepute. As a filmmaker you should avoid doing this unless you can confidently claim one of the defenses set forth below.

If you are offering your film as truthful, you want to have “double sourcing” on everything. Double sourcing simply means that you have two separate and independent sources for each factual assertion in your script. This is especially important for anything that might offend anyone, but especially the subject of the remark or representation. The second source should be truly independent of the first source. For instance, two different newspaper articles written from the same press conference or press release is not really a double source. The same fact verified by a second person not at the press conference would be a double source.

There are a number of common defenses to a suit for defamation. However, none of them is as good as never getting sued in the first place. Be extra careful when you make statements about individuals who are living and identifiable. The defenses to a defamation claim are:

Truth: This is the classic defense. Everybody seems to know that truth is a defense. Even if a statement is not completely true, you should win with a public figure if you have checked the facts out and you have a reasonable basis for believing they are true. Unfortunately for you, reasonable people may differ on what amounts to a reasonable basis for believing anything. Check the facts carefully. Double source any dubious or inflammatory claims.

Opinion: Everybody has a right to his or her opinion. If you are stating an opinion, make it very clear that it is an opinion. “Jack is a thief” is libelous. “I don't like Jack’s performance” is an opinion. This can be tricky. The courts don't let you off the hook with merely a perfunctory statement such as “It is my opinion that . . .” and then go on with a string of libelous statements. It must be clear to the reasonable listener that the statement is an opinion, not a fact.

Humor/Parody/Satire: Humor is a defense because, if everyone hears a comment as a joke, you have not damaged the reputation of whatever or whoever is the butt of your joke. However, there is a big difference between something that draws laughs or chuckles from most listeners and something that insults someone. Be careful of the latter.

It is likely that the makers of The Social Network utilized the double-sourcing method when finding the facts used to base the film’s script on. Regardless, they evidently did not include any events or statements in the movie that could give rise to a defamation claim and it is safe to say that it was by no accident. When you produce your docudrama you should use extra care not to utilize your artistic license so far as to portray inaccurate events or statements that could be injurious to the reputation of the film’s subject or which tends to bring them into disrepute.

Can You Use The Name Of Your Film’s Subject In The Title Of The Project?

So far we have discussed what to do or not to do with regards to creating the content of your film, but what about the film’s title? Can you use your film’s subject’s name in the film’s title?

Let us look at another well-known U.S. case. The case of Rogers v. Grimaldi, 875 F.2d 994, involved a lawsuit started by Ginger Rogers over the use of the title “Ginger and Fred” for a fictional movie that only obliquely relates to Rogers and Astaire. Rogers argued that the defendants violated the Lanham Act by creating the false impression that the film was about her or that she sponsored, endorsed, or was otherwise involved in the film, violated her common law right of publicity, and defamed her and violated her right to privacy by depicting her in a false light.

 

Page 2 of 3   Next Page

RELATED LINK:

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

Topics: Film Producer's E&O Insurance, rights of publicity, rights of privacy, defamation insurance, Film permission, docudrama insurance

The Delicate Art of Making a Bio Pic w/o Getting Permission (Part 3)

Posted by Jeff Young and Tarek Elneweihi on Jun 25, 2015 9:32:00 AM

The court ruled:

Many titles, however, include a well-known name without any overt indication of authorship or endorsement--for example, the hit song "Bette Davis Eyes," and the recent film "Come Back to the Five and Dime, Jimmy Dean, Jimmy Dean." To some people, these titles might implicitly suggest that the named celebrity had endorsed the work or had a role in producing it. Even if that suggestion is false, the title is artistically relevant to the work. In these circumstances, the slight risk that such use of a celebrity's name might implicitly suggest endorsement or sponsorship to some people is outweighed by the danger of restricting artistic expression, and the Lanham Act is not applicable.

Furthermore:

Titles, like the artistic works they identify, are of a hybrid nature, combining artistic expression and commercial promotion. The title of a movie may be both an integral element of the film-maker's expression as well as a significant means of marketing the film to the public. The artistic and commercial elements of titles are inextricably intertwined. Film-makers and authors frequently rely on word-play, ambiguity, irony, and allusion in titling their works. Furthermore, their interest in freedom of artistic expression is shared by their audience. The subtleties of a title can enrich a reader's or a viewer's understanding of a work. Consumers of artistic works thus have a dual interest: They have an interest in not being misled and they also have an interest in enjoying the results of the author's freedom of expression. For all these reasons, the expressive element of titles requires more protection than the labeling of ordinary commercial products.

And:

The title “Ginger and Fred” contains no explicit indication that Rogers endorsed the film or had a role in producing it.

[…]

Moreover, the title has an ironic meaning that is relevant to the film's content. As Fellini explains in an affidavit, Rogers and Astaire are to him “a glamorous and care-free symbol of what American cinema represented during the harsh times which Italy experienced in the 1930s and 1940s.” In the film, he contrasts this elegance and class to the gaudiness and banality of contemporary television, which he satirizes. In this sense, the title is not misleading; on the contrary, it is an integral element of the film and the film-maker's artistic expressions.

The court then summarized as follows:

In sum, we hold that section 43(a) of the Lanham Act does not bar a minimally relevant use of a celebrity's name in the title of an artistic work where the title does not explicitly denote authorship, sponsorship, or endorsement by the celebrity or explicitly mislead as to content. Similarly, we conclude that Oregon law on the right of publicity, as interpreted by New York, would not bar the use of a celebrity's name in a movie title unless the title was “wholly unrelated” to the movie or was “simply a disguised commercial advertisement for the sale of goods or services.” Under these standards, summary judgment was properly entered on the undisputed facts of this case, rejecting the Lanham Act and right of publicity claims, as well as the claim for false-light defamation.

Based on this decision, using a celebrity’s name in a film title may be permitted as long as the use of the said celebrity’s name does not explicitly indicate that the celebrity wrote, sponsored or endorsed the film, or does not explicitly mislead the viewer as to the content of the film. In the case of The Social Network, the creators did not use Mark Zuckerberg’s in the title of the movie. This may have been for artistic reasons, or the creators may have been concerned that the use of his name in the title could denote his sponsorship or endorsement, and thus could have given rise to a lawsuit.

If You Do Not Need The Permission Of The Celebrity Subject Of Your Film, Why Bother Getting Permission? 

All of the above does not prevent you from seeking permission and co-operation from the celebrity subject of your film for business reasons. For example, with permission, you will also likely get co-operation and possible endorsement from that celebrity that will benefit the financial success of the Project. In turn, however, the celebrity may ask for financial participation and creative control that you may be reluctant to hand over.

Additionally, while we have canvassed a number of situations in which you do not need to get a celebrity’s permission to make a docudrama about them, the fact is that you could still get sued. Whether the claimant in the lawsuit would be successful or not would depend on how careful you were during the making of the movie to avoid the legal issues described above. But the fact is, most people do not want to spend considerable amounts of time and cost defending a lawsuit. If you can get the celebrity’s permission, then you will have the security of not having to worry about them suing you.

Of course, one of the purposes of E&O insurance is to protect and indemnify you if you end up getting sued by the celebrity subject of your film. You may think that with E&O insurance in place, you do not have to worry about being sued since your insurer will cover the costs. But what you may not know is that a possible result of not getting permission from a celebrity to do a docudrama could be a much higher E&O deductible for cases where the individual or estate of the individual decides to start a lawsuit. In some cases your deductible could jump from around $10,000 to as high as $250,000 for that one item. For many filmmakers, having to pay a quarter million dollar deductible would be disastrous. So, in order to protect yourself and your project when making a docudrama about a celebrity, getting his or her permission may still be the best choice, even if you are careful not to avoid the legal issues relating to Rights of Privacy and Publicity, False Light and Defamation.

OTHER E&O CASES

  Jeff Young
Jeff Young, J.D. | Barrister & Solicitor | Trademark Agent (Canada and US)
jy@arenaltman.com | Direct: 604.563.1192
Member Law Society of British Columbia, Canada | Member State Bar of California, USA (inactive)

    • The Lawyer’s Lawyer
    • Educator and formerly practiced in-house with VANOC and UBCP
    • Music producer, composer and expert snowboarder
    • Called in BC (1988) and California (2010)

ALTMAN & COMPANY | Business and Entertainment Law

Suite #202 – 2245 West Broadway Ave., Vancouver BC V6K 2E4

 
 Tarek Elmeweihi
    • Associate
    • Musician and music producer handling litigation files and entertainment contract
    • Called in BC (2013)
    • tarek@arenaltman.com

 ALTMAN & COMPANY | Business and Entertainment Law
Suite #202 – 2245 West Broadway Ave., Vancouver BC V6K 2E4

 

Page 3 of 3 (Links to page 1 and 2)

 

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E&O: What You Need to Know

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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, rights of publicity, rights of privacy, defamation insurance, Film permission, docudrama insurance

Blurring the Lines of Music Infringement Law - 3 Perspectives in One

Posted by Jeff Young on Jun 17, 2015 12:59:23 PM

Marvin Gaye vs. Robin Thicke and Pharrel Williams (Blurred Lines)

Marvin Gaye

For many years of my life, I have had the pleasure of enjoying three simultaneous careers. I am a senior member of the Bar of British Columbia, Canada focusing on entertainment law, I am a member of the State Bar of California, USA, regularly dealing with my colleagues in Hollywood, and I am a music producer and composer with a current co-write on the radio and a cue on a currently airing TV show. Very rarely does a legal case affect me in all three of my careers at once. The recent music infringement lawsuit between the Marvin Gaye estate vs Robin Thicke and Pharrell Williams over the songs Got to Give It Up (by Gaye) and Blurred Lines (by Thicke/Williams) does exactly this. As a result, I thought it would be interesting to present my commentary from all three of these perspectives, separately.

From the American lawyer’s perspective

The general understanding among attorneys practicing music law in America is that a composition infringes on another when there are substantial similarities between the melodies of one song versus that of another. The precedent setting cases have all generally ruled that similarities in chord progressions and general rhythmic feel – or as some would call it, the “groove” – does not constitute infringement. You need to have melodies that sound alike. In fact, mere similarities in the groove of a song is usually considered a genre. There is no copyright in a genre and there is no copyright in a chord progression.

In comparing Blurred Lines and Got to Give It Up, there is clear evidence that Thicke and Williams meticulously copied the groove of Got to Give It Up. There are also some similarities in the bass line of the two songs, but those similarities do not seem substantial. On a pure legal analysis, it would not seem like this was a case of infringement. However, the case went to a jury, who may have been influenced by the apparent bad attitude and demeanor of Robin Thicke in court. Also, no one in the public has seen the musicologist reports that stated that there was in fact compositional infringement, not just a copying of a feel, groove or genre. Furthermore, jury decisions only decide individual cases based on fact. No reasons are delivered and technically, no legal precedent is set. The message to any disgruntled music creator is that regardless of the existing law and established precedents, if you take an infringement case to a jury, you may still win if you can convince them there was some form of copying, regardless of what aspects were copied and what the legal precedents say to the contrary.

What does the American music lawyer typically say when asked by a client who wants advice on what they can do before going into the recording studio? Prior to this decision, the advice given would be that the client can copy a feel, groove or genre, but you cannot copy melody lines, hooks (or lyrics, if any). Following this advice, the client is told that they will likely going to avoid a lawsuit because prior cases have held that it is reasonable to assume that we are all influenced by the feel, groove and genre of the music that we listen to and like, and that alone does not amount to an infringement. Now, while the American attorney can still technically say that the law really hasn’t changed, he or she will now have to further advise the client that any disgruntled music creator can still file a lawsuit, choose a jury trial, and convince the jury that there is infringement anyways – particularly if that client isn’t liked by the jury.

I have always believed that certain issues such as music copyright infringement should not be submitted to juries because juries lack the legal training necessary to make the correct legal decision. There is a tendency to ignore established law and go with what seems intuitively right based only on the facts, and decide accordingly, sometimes even when the judge’s instructions are otherwise. That leads to bad law. Juries in America are not obliged to give reasons, so we will never be able to tell if they understood what the law really was to begin with. This kind of uncertainty is scary. Really scary.

From the Canadian lawyer’s perspective

Canadian music lawyers will likely never face a case like this one. Music infringement cases are not decided by juries in Canada. They will be decided by judges who must provide legal reasons that at least can be appealed if the reasons appear incorrect. Also, an American trial jury decision with no reasons provided has no legal weight as precedent in Canada. So as a Canadian music lawyer, if a client asks me how to avoid infringement, I would still advise that you can copy a feel, groove or genre, but avoid copying melody lines (and lyrics, if applicable) and you are likely going to avoid a lawsuit because we are all influenced by the feel, groove and genre of the music we listen to and like the most. However, most clients that come to me in Canada don’t just want a Canadian hit. Their dream is to have a hit in America on American radio. Therefore, it would not make sense for Canadian lawyers to completely ignore the Blurred Lines decision. In other words, while this decision has no formal effect on Canadian law, it will likely have some effect on Canadian music creators, especially those whose creative works cross the border, and it would be unwise for a Canadian entertainment lawyer to not point that out.

What is the result for Canada? Well, we now have one single jury in America rendering a decision (a decision involving their own interpretation of music law that they do not have to provide reasons or account to anyone else for) likely affecting the future behavior of most of the music creators in another country for a long time to come, even though the laws of their own country does not require them to behave that way. Bizarre.

From the Producer’s and Composer’s perspective

In the film industry, scripts are reviewed, potential infringements are identified, and the resulting clearance reports get sent to entertainment lawyers to review and to render opinions as to whether changes to the scripts are needed. This is all part of the “errors and omissions” process that because of the history of lawsuits in that industry, has become common and standard, if not virtually mandatory. Basically, the lawyers have to tell the filmmakers what is allowed on the screen, or not.

This “clearance process” also happens, in a lesser degree, with books. Literary publishers often retain lawyers to engage in a “libel read” of a book to identify possible legal risks before the book is released, and sometimes, risky portions of the book are edited out.

If the results of the Blurred Lines case continue in future jury decisions in this manner, the state of legal uncertainly may become such that major labels releasing records may become so concerned that they will have to adapt a similar process for the music industry. After all, this case resulted in verdict of over $7 million!

In other words, the “clearance reports” will have to be done by qualified musicologists who will review the entire album and identify potentially infringing phrases or “hooks”, and then submit those musicology reports to entertainment lawyers who will then render opinions on what can be left in and what has to be removed.

If this sounds ridiculous, I would remind you that I’m sure this seemed as ridiculous to filmmakers and book authors of past eras, but lawsuits in those industries have now made clearances commonplace. Basically, lawyers will have to tell the music producer what is allowed on the records, or not.

I’m not sure I would ever like this – even if I’m the lawyer clearing my own work!

As a composer, I am often asked by film directors to create “sound-alikes”, especially when the film is independently made and there is no budget to license a major hit song. A “sound-alike” is a music cue that copies a feel, groove or genre, but does not copy melody lines (or lyrics, if applicable) in order to avoid a lawsuit. Now, in view of the Blurred Lines case, this approach may not work anymore. Some questions that arise for the music composer: Is it reasonable to force all of these independent films to only license the hit music track when the director is only looking for a similar feel, groove or genre? How will these multi-million dollar awards affect the future careers of upcoming composers if they are living in fear of lawsuits for everything they try to create with an established feel, groove or genre?

In Conclusion - Music Infringement Law

The Blurred Lines decision introduces significant uncertainty into music infringement laws. This uncertainty is aggravated by the fact that juries are not required to render reasons for their decisions.

It is my understanding that Thicke and Pharrell have filed an appeal of this decision. I sincerely hope that the appeal will succeed at least in part – specifically, from the point of getting clarity on the legal principles involved.

I am much more concerned about that than which side winds up with the $7M. I just want the lines of music infringement law to be less blurred!

--------------------

JEFF YOUNG
- The Lawyer's Lawyer
- Educator and formerly practiced in-house with VANOC and UBCP
- Music Producer, composer and expert snowboarder
- Called in BC (1988) and California (2010)

Jeff Young, J.D. | Barrister & Solicitor | Trademark Agent (Canada and US) jy@arenaltman.com | Direct: 604.563.1192 Member Law Society of British Columbia, Canada | Member State Bar of California, USA (inactive) ALTMAN & COMPANY | Business and Entertainment Law Suite #202 – 2245 West Broadway Ave., Vancouver BC V6K 2E4

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