E&O: Acquire 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

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.

 

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 Insurance, Entertainment Insurance, Film insurance broker, Film Production, Film Producer's E&O Insurance, Multimedia Risk Insurance, Film Insurance claims, Film Producers, film insurance premium

E&O Insurance - How much of your production's format is copyright-able

Posted by Doran Chandler on Feb 27, 2012 2:19:00 PM

By: Doran S. Chandler - Roberts & Stahl, Entertainment Lawyers

How much of your film or TV show is copyright-able?

DORAN CHANDLER LawyerWhenever a producer or writer dreams up a new idea for a television show, it doesn't take long for them to start worrying about someone pinching it and beating them to the punch. This is especially true in the case of news programs, game shows, and other reality based productions. Such productions are relatively inexpensive to produce and consist mainly of material with a questionable footing in copyright. This makes it accessible to a large number of producers and difficult to pitch and develop without tipping off competitors about a potential new trend.

A somewhat odd corollary to this is that the value of television formats has grown exponentially in recent years with the widespread licensing of formats to broadcasters or production companies in foreign markets. As a result, many producers want to know what they can borrow from existing programs, and whether they can protect what they have created. Only one notable Canadian case, Hutton v. Canadian Broadcasting Corporation, sheds some light on the issue. 

In Hutton, the Alberta courts considered whether the format of a music video magazine show could be copyrighted. The courts held that concepts and devices generally present in shows of the same genre were not protect-able, such as the mood of the hosts, the presentation of biographical materials, interviews, and the use of TV monitors in the set design. The courts also considered the use of infinity shots, bumpers and teasers to commercials, the use of montages, and the use of transitions like dissolves and back-to-back video playbacks, finding that these elements could not in themselves be protected. One characteristic the trial court found protect-able at trial were elements of "dramatic conceit" in the programs, or the entertainment fictions used to create drama in each program. The trial judge ultimately found that the plaintiff's show, Star Chart, was not a dramatic work within s.2 of the Copyright Act and thus not capable of being copyrighted. On Appeal, the Alberta court de-emphasized the idea that dramatic conceit was protect-table and held simply that the works were not qualitatively similar and did not have any causal connection between them.

The end result of Hutton is that, while we have some idea about what Canadian courts will consider when evaluating a format, we don't really have a clear guideline for what is required to achieve a protect-able format. Adding to the uncertainty is that different standards of protection have emerged in other jurisdictions. In one case considering the copyright-ability of the format for Opportunity Knocks, a prominent UK copyright judge held that the elements of a "dramatic format" were too uncertain for copyright protection.

Meanwhile, courts in Holland and Brazil have granted protection to the Survivor and Big Brother formats, respectively, finding that copyright can subsist in the meticulous combination of individually unprotect-able elements in a format. Together, these decisions leave producers intending to rely on a specific format on shaky ground. Given that the legal right to use or to keep others from using a given format is unpredictable at best, it is a good idea to take some precautions when developing a show. One important security measure is to pitch your concept formally in conference using confidentiality agreements. Another useful precaution is to document and distinguish your concept with as much detail as possible, including the use of specific music, timing, camera angles and set design.

Registering distinctive slogans and catch phrases with the trademark office can offer protection, as can registering your detailed synopsis with the copyright office. Lastly, advertise your production as aggressively as possible because a strong market presence will always attract more copyright protection than anonymity. 

 

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 Insurance, Entertainment Insurance, Film insurance broker, Film Production, Film Producer's E&O Insurance, Film Insurance claims, Film Producers, Documentary Insurance

Bears and Film Insurance: What to Ask? | Animal Film Insurance

Posted by David Hamilton on Dec 8, 2011 10:26:00 AM

animal film insurance

ANIMAL INSURANCE ON FILM SETS

Bears are frequently used in film productions shot in the Pacific Northwest.

The risks associated with filming a bear can be transferred to an insurance company once the underwriter understands how the public, cast, crew, equipment and the bear will be protected.

The underwriter will need answers to the following questions:

  1. Current Bear Vet exam certificates. What is the value of the bear to the owner if the bear were to die? Usually the figure is  based on three years revenue that the bear has earned.

  2. How will the bear get from their pen/corral to their position on set in the electrified fenced area? How will the cast and crew be protected during this transit?

  3. Where will the bear be on set when not filming? During this time, how will cast/crew/public be protected?

  4. When bear is on set and filming, what do they do to protect public/cast/crew from bear?

  5. Please confirm cast not in direct contact with the bear. Will the cast always be on one side of the electrified fence and the bear on the other?

  6. Please provide shooting schedule with the bear.

  7. Please forward storyboards of bear scenes when available.

  8. Given the time of year, are there any issues resulting from the bear normally hibernating during this time of year?

  9. Details of housing and transit of the bears from the permanent home.

  10. The main corral  structure to house the bear – is this a permanent structure? What will it be constructed of? How high will the fence be?

  11. Will the bears be housed over night at the corral?

  12. What type of security will be in place?

  13. Will there be 24 hour attendants for the bear?

  14. How will the bears be shipped to the set from out of town?

  15. How are the protected during shipping?

As specialized film insurance brokers, we can assist with obtaining this coverage.

Click me

 

Topics: Film Insurance, Entertainment Insurance, Film insurance broker, Film Production, Documentary Insurance, film insurance premium, animal insurance, Educational Film Insurance

Digital Film Insurance and the Future | Digital Media Insurance

Posted by Mike Groner on Dec 5, 2011 4:41:00 PM

Insurance for digital features, TV series and documentaries is evolving.

Digital Film Insurance and the Future

It’s the case that many production companies now incorporate scenes in their films that were once captured live but are now being created, edited and manipulated digitally in post production. What this means is that the need for negative/faulty insurance is becoming gradually reduced and will soon be replaced by digital image capture, processing and storage. Examples:

  • In 2009, Slumdog Millionaire became the first movie shot mainly in digital to win the Academy Award for Best Cinematography
  • The highest grossing movie in the history of cinema, Avatar, was shot on digital cameras

As digital cinematography shifts towards “tapeless” or “file based” workflows, insurers needs to ensure that they are covering similar incidences of risk, tailored towards loss and/or damage to digital media.

What this means for insurers

Digital data should be covered as software under the negative coverage policy definition, and though some policy wordings incorporate coverage for digital data, the wordings might still need to be formatted and reworded for digital media. Digital capture may occur on video tape, hard disks, flash memory, or other media which can record digital data, therefore wordings need to reflect the new technology and storage devices which presently, many don’t.

If the film industry moves solely towards digital film, then the risk rating and pricing related to production packages will need to be reviewed given that the risk factor between the periods of principal photography and post production will be significantly reduced and  the risk of loss will be shifted towards another area such as post production.

Typically insurers will require information relating to the lab and type of film used, whereas with digital cinematography the shift will be towards the type of camera being used and the experience of the operator in using an HD or Red Camera. Back up procedures will have more impact on the rating of a production.

Why digital media insurance?

Various technical considerations arise when contrasting film vs. digital cinematography, i.e., when shooting on film, response to light is determined by what film stock is used, whereas with digital photography, response to light is determined by the CMOS or CCD sensor(s) in the camera, so the cinematographer needs familiarity with the specific camera model. Typical production packages are rated based on all costs incurred during principal photography and exclude many post production costs. Production company requirements are now shifting towards a significant portion of the risk stemming from post production activities.

Inferences

Technology innovation has meant that new vendors have emerged on the market such as RED and Silicon Imaging that are primarily focused on digital technology.

Impact on Claims/Losses

What this means for insurance losses is that innovative risk control and risk transfer methods need to be addressed that specifically relate to new exposures from digital media products. The types of losses that can result stem from:

  • transferring digital data to/from 2D-3D conversion
  • migration of data from old forms of storage to new forms
  • care, custody and control issues relating to the migration and archiving of data

The Future

As insurers revisit their policy wordings, they must ensure that their coverage and exclusions match with the industry requirements, as the advances in digital technology won’t slow down to wait out the process. While wordings might not currently exclude losses resulting from digital cinematography, insurers must ensure that new risk rating methods and coverage address the new risks that will inevitably arise during post-production and storage of data.

Topics: Short Film Insurance, Film Insurance, Entertainment Insurance, Film Production, Film Producer's E&O Insurance, Film Insurance claims, Film Producers, Documentary Insurance, DICE Insurance

Cast Insurance: 5 Reasons to Use an Approved Cast Doctor

Posted by David Hamilton on Jul 10, 2011 10:12:00 AM

CAST INSURANCE

DoctorsAn approved cast doctor will save a film producer time and money when obtaining film production insurance for a film production.

Cast insurance covers against extra expenditures incurred by the production caused by death, sickness, disability or kidnapping of insured cast members, director, DOP, or anyone else designated under cast coverage. Financiers and distributors will usually require cast insurance before they release funds. 

Five reasons why it is well worth the effort to seek out an experienced doctor that is familiar with cast exams:

  1. An approved doctor is trained to dig for more information when an actor is being evasive regarding a previous medical condition such as substance abuse or a bad back. This information is material to the insurance company and the producer as it will determine if the actor will be subject to additional premiums to become insurable.
  2. An approved doctor will not be bullied or awed by a celebrity actor: they obtain better information.
  3. An approved doctor knows what information a film insurance underwriter needs and provides it. There is less back and forth questioning which saves everyone time.
  4. An approved doctor always answers all the questions on the cast medical form which avoids delays.
  5. Last but not least, an approved doctor was approved in the first place because they have legible handwriting! 

Get a Quote

Feel free to contact me david@frontrowinsurance.com if you would like me to send you a free list of approved cast doctors in North America.

RELATED POST:

Essential Elements (EE) Cast Insurance

RELATED LINKS:

Film Insurance 101 & How to Protect Your Film Project

Film Production Insurance: Why it is needed

Pre-Production Insurance

Film Production Insurance

How the Premium is Determined

Short Film Insurance

DigiGear Insurance

Props/Sets/Wardrobe Insurance

E&O Insurance

DICE Insurance

Third Party Property Damage

Crew Vehicles

Umbrella Vs. Excess Liability

Commercial General Liability

Negative Film / Videotape and Faulty Stock

Workers Comp

Cast Insurance

Extra Expense (EE)

Foreign Locations

Claims

Topics: Film Insurance, Entertainment Insurance, Film insurance broker, Film Production, Film Producers, Film Production Companies, Cast Insurance

Film Production Crew: Always Ask if you are Covered by Workers Comp

Posted by David Hamilton on Jun 14, 2010 3:18:00 PM

Workers Compensation for Film Crews

Workers Compensation for Film Crews

Crew members on film productions, short films, commercials, documentaries and music videos should always be covered by work comp insurance - the risk of going without is too great.

If you are a crew member working on a low or micro budget film production, you should always ask the producer if they have workers compensation coverage for the crew and general liability coverage for the production in general.

Workers comp. provides benefits to workers injured on the job such as: medical costs, rehab costs and loss of future earnings all per the policy wording. In most states and provinces, the filmmaker is obligated to provide coverage for any cast or crew that they hire. In some cases coverage is arranged through a private entertainment insurance broker and in some cases it is arranged directly through the state or provincial agency responsible for providing work comp.

The benefit to the producer is that once the injured crew member accepts the work comp benefits, they usually waive the right to sue the producer

Sometimes that insurance company or government work comp agency will not provide coverage if the crew and cast are not being paid as there is no way to determine loss of future earnings. For this reason, the producer should arrange to make nominal payments to cast and crew.

If you are a crew member who gets hurt on the job and there are no work comp benefits available to you, then you are faced with the prospect of suing the producer while recovering from your injuries - difficult and unpleasant.

Always ask the producer if you will be covered by workers comp even when volunteering on a short shoot in any capacity.

RELATED BLOG POSTS:

WORKERS' COMP EXPLAINED
 
FOCUS ON SAFETY TO REDUCE FILM PRODUCTION WORKERS COMPENSATION CLAIMS

RELATED LINKS:

Film Insurance 101 & How to Protect Your Film Project

Film Production Insurance: Why it is needed

Pre-Production Insurance

Film Production Insurance

How the Premium is Determined

Short Film Insurance

DigiGear Insurance

Props/Sets/Wardrobe Insurance

E&O Insurance

DICE Insurance

Third Party Property Damage

Crew Vehicles

Umbrella Vs. Excess Liability

Commercial General Liability

Negative Film / Videotape and Faulty Stock

Workers Comp

Cast Insurance

Extra Expense (EE)

Foreign Locations

Claims

Topics: Film Insurance, Entertainment Insurance, Film insurance broker, Film Production, Film Producers, Commercial Production Insurance, Documentary Insurance, Film Production Companies, Workers Compensation

Film Production Insurance and Trains: Stay on Track

Posted by David Hamilton on Feb 14, 2010 4:31:00 PM

FILM PRODUCTION INSURANCE AND TRAINS: STAY ON TRACK

FILM PRODUCTION INSURANCE AND TRAINS: STAY ON TRACK

The film production company should always advise their film insurance broker well in advance of the anticipated use of any railway cars or equipment. You should never sign a contract with respect to use of trains without first having your entertainment insurance broker review the document.

If the train is being used as a prop/set and is not in motion, then damage to the train itself would be provided under Props/Sets/Wardrobe coverage. If the train is in motion a sublimit would be in effect for physical damage to the train.

Liability coverage is provided under a Commercial General Liability policy. If you are required to indemnify the train owner, then specific coverage arrangements must be made prior to the use of the train. In order to provide a quote/coverage for Railway Cars and Equipment, please forward answers to the following:

Filmmaking on Railroads / Film Production & Trains Questionnaire:

Please provide:

  1. A copy of the railroads contractual agreement
  2. Description of scenes involving railroad equipment
  3. Dates equipment used
  4. Locations of equipment:
    1. Where is equipment stored?
    2. Where is equipment moved to? Exact street address.
    3. Where is equipment returned after use is over?
  5. Type of equipment used? Please list
  6. Activities the production company has with the equipment
  7. How many people will be "on board"?
  8. Distances and speed of equipment
  9. Any stunts? Please list. Please complete a stunt questionnaire
  10. Will main line tracks be used during filming days?
  11. Please advise how the cast, crew, equipment and public will be protected during filming

The same advice will apply no matter if you are shooting a feature film, TV series, documentary or a short film. Please contact us if you have any questions.

SEE ALSO:

SAFETY FOR SARAH

Topics: Short Film Insurance, Film Insurance, Entertainment Insurance, Film insurance broker, Film Production, Documentary Insurance, DICE Insurance, Film Production Companies, TV Series

Film Production Insurance Coverages Explained - Part 1

Posted by David Hamilton on Nov 23, 2009 10:59:00 AM

FILM PRODUCTION INSURANCE COVERAGES EXPLAINED - PART 1

FILM PRODUCTION INSURANCE COVERAGES

There are several coverages that a producer needs when insuring a film project (by "film", we also mean HD and video): 

CAST INSURANCE

  • Covers against extra expenditures caused by disability of insured cast members, director, DOP, or anyone else designated under cast coverage.

NEGATIVE FILM & VIDEOTAPE INSURANCE

  • Covers against extra expenditures caused by loss of, damage to, or destruction of Negative or Tape or Hard Drive on an "all risk" basis, excluding coverages outlined under the Faulty Stock, Camera & Processing coverages.

FAULTY STOCK CAMERA & PROCESSING INSURANCE

  • Covers against extra expenditures caused by damage to, or destruction of negative or tape caused by faulty stock, faulty camera, faulty processing and accidental erasure or exposure to light.

PROPS, SETS & WARDROBE INSURANCE

  • Covers props, sets, scenery, costumes, wardrobe and similar theatrical property on an "all risk" basis against direct physical loss or damage to the rented property.

MISCELLANEOUS EQUIPMENT INSURANCE

  • Covers cameras, camera equipment, sound and lighting equipment, grip equipment and similar miscellaneous equipment on an "all risk" basis against direct physical loss or damage.

PROPERTY DAMAGE LIABILITY INSURANCE

  • Covers against all sums the insured shall become legally obligated to pay because of loss of, injury to, or destruction of property of others in the care, custody or control of the insured.
  • Excludes property covered under miscellaneous equipment and props, sets and wardrobe coverage.

I will explain more coverages in Part 2 | Part 3.

Related: Film Insurance 101 book

Topics: Film equipment insurance, Film Insurance, Entertainment Insurance, Film Production, Commercial Production Insurance, Documentary Insurance, DICE Insurance