Multimedia Insurance Coverage

Posted by David McLeish on Oct 27, 2018 3:05:00 PM

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Thanks to the Internet, Everyone Has Seen your Movie.

Your intrepid film managed to weather the entire production process without any hiccups—bravo! Now that the theatrical run is over, it’s time to bequeath the film to posterity in the form of home video and TV rebroadcasts. Safe enough, right?

In fact, the “tail” of a movie’s lifespan is no less exposed to potential claims than any other phase. As the film is released to home video and dissected on the internet, every scene and every word of dialogue will be scrutinized. As more sets of eyes see your film, the likelihood of a nuisance lawsuit unfortunately increases. For example:

  • Unauthorized use of logos can elicit legal action from the corporations that own them
  • Inclusion of identifiable faces in crowd scenes can prompt legal action
  • Misappropriation of name or likeness can cause a lawsuit to be brought

Multimedia risk insurance (or “Producer’s Errors & Omissions [‘E&O’] Coverage) offers protection against these kinds of lawsuits, including alleged unauthorized use of titles, formats, ideas, characters, plots, plagiarism, unfair competition or privacy, and breach of contract. Distributors normally require that this coverage be in place prior to distribution simply because of the myriad of unpredictable risks a film can face in the distribution phase.

As a filmmaker, you want to be able to focus on doing just that—making films. Wouldn’t you like to rest easy once you’re finished? Ensure your production is protected from the idea phase to the home video phase so you can concentrate on what you do best.

Contact us – we can help.

Tags: Multimedia Risk Insurance, Multimendia Risk, TV and Film Producers E&O Insurance cost, HD E&O, Producers Errors and Omissions Insurance, Producers Errors & Omissions Liability Insurance

E&O Film Insurance Protects Against Invasion of Privacy and False Light Accusations

Posted by Casey Budden on Oct 26, 2018 7:10:24 AM

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Ready for Prime Time: RELEASING AND Broadcasting your Finished Film

You’ve made it! After much hard work, your film is finished and being widely screened in theatres. Audiences love it, and very positive reviews have appeared in several notable publications. Pride and excitement are the order of the day as everyone involved enjoys the fruits of their labor. Extreme care was taken in the production, so you’re shocked when you’re informed that a lawsuit has been brought against you for invasion of privacy.

Invasion of privacy is a serious risk to which filmmakers are exposed, and it’s difficult to anticipate all possible sources of legal action.

Imagine this scenario:

Your movie is an adaptation of a well-known book—let’s say, a roman a clef about a Canadian rail disaster. Due to the length of the book and the demands of the feature film format, some artistic license necessarily had to be taken and the book was heavily adapted from the original. This is not unusual, but unfortunately an actual person recognized himself in one of your characters and took serious issue with the way he was depicted.

Claims of this sort are fairly common and fall under the rubric of “false light” accusations. The typical argument is that a specific characterization is unflattering and transparent enough that the average member of the public can easily deduce who it is based upon. In other words, the party in question has been presented “in a false light.”

Let’s also consider a second scenario:

Your film is a documentary about the Canadian boxing world. You’re very careful about securing releases from all parties discussed in your film and all recognizable persons who appear in the background. You’re confident that you’ve taken all necessary precautions, but you still receive notice that one of the fighters discussed has initiated a lawsuit against you for public disclosure of embarrassing facts. While your depiction was accurate, your film included some discussion of the fighter’s life after the boxing world and went into detail about a failed business venture. The party concerned considers this information embarrassing and not relevant to the subject of the documentary.

What can be done?

Generally, claims of invasion of privacy are more successful if the plaintiff can argue that:

  • The subject matter would be highly offensive to a reasonable person
  • The information is not of legitimate concern to the public (i.e., the information is not newsworthy).

It’s obvious that these terms are highly subjective. What constitutes “highly offensive?” Who is this fabled “reasonable person?” And what exactly is of “legitimate concern” to the public? Even when extreme care has been used, a lawsuit is sometimes unavoidable.

A Producers’ Errors & Omissions (E&O) Insurance Policy Is The Best Protection.

The last thing you want is to face a costly lawsuit after your film has already been released. An Errors & Omissions policy protects the entire lifespan of your project against situations such as the above, by helping arrange a legal defense against:

  • Allegations of unauthorized use of titles, formats, ideas, characters, plots, plagiarism
  • Allegations of libel, slander, and defamation of character
  • Allegations of invasion of privacy

Contact us for more information.

Tags: false light and E and O, invasion of privacy and filming, E&O Policy for producers, E&O copyright report, Film E&O, title clearance, media liability insurance policy, Producers Errors and Omissions Insurance, HD E&O, Producers E&O Insurance, Producers Errors & Omissions Liability Insurance, Multimendia Risk

E&O Insurance for your Film Production: Preventing Litigation

Posted by David Hamilton on Jul 23, 2012 12:06:00 PM

This article is an excellent introduction to what is and what is not covered by a Film Producers e&o Insurance Policy.

The author is an attorney that has spent a considerable amount of time working with the Canadian Film and Television industry. She has represented international film insurance companies for over 30 years.

Also discussed in the article:

Overview of Clearance Procedures

  • Standard Film and TV Clearance Produres
  • Docudramas
  • Documentaries
  • Fair Use: Criticism and Parody
  • Minimizing The Risk Of Copyright and Submission Claims
  • Companion Materials, The Digital Age and More

 Created on 07/23/12 at 14:58:48

Tags: Film Production Insurance, Production Insurance, Entertainment Insurance, Entertainment Insurance Broker, E&O insurance for Films, E&O Insurance, E&O, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, HD E&O, Producers Errors and Omissions Insurance

E&O Insurance for Film and TV: The Value of a Lawyer

Posted by David Hamilton on Feb 20, 2012 5:34:00 PM

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

Entertainment lawyers are often called upon to help clients obtain Errors & Omissions insurance for their productions. This job is easy if the needs of E&O insurers are considered before production begins. However, the process can be difficult and time-consuming if no thought is given to E&O coverage until after the final cut is locked.

E&O Insurance covers claims against a production, including breach of copyright or trademark, breach of privacy, defamation and breach of contract. These claims do not usually surface until there has been a broadcast or exhibition of the production.

E&O coverage is not included in the standard production insurance that is taken out for injuries, damage to property, etc. Only occasionally do you hear about the types of claims for which E&O insurance provides protection. For example, an action was brought several years ago against Dreamworks by an author who had written a book about the events depicted in the feature film Amistad. The author claimed that her copyright had been breached because the film told the story in ways which were similar to the book. More recently, one of the characters depicted in the recently released feature film Boys Don’t Cry has brought an action for breach of privacy because of the manner in which her life was depicted.

But most claims do not make headlines; usually they are threatened and then settled. Even if your insurer is ultimately successful in defeating a claim, it can still be costly because of the legal fees involved. And even if a claim is settled, the producer generally pays.

There are only a small number of insurers who provide E&O insurance to the entertainment industry. These policies are sold by specialized agents who are familiar with film and television production. If you have been involved in producing a documentary or television production, you have probably filled out the lengthy forms involved in making an E&O application. The application tells the agent how far along you are in the production and what the problem areas are likely to be, but it also serves as a handy checklist for you. Once the application is received, the agent will provide you with a quote and hand it over to lawyers who provide advice to the insurer about the risks involved with the production. The insurer will have its lawyer contact production counsel to review the potential problem areas and to discuss how these will be addressed.

The advantage of having your lawyer speak directly to the insurer’s lawyer is that often E&O insurance can be approved with a single phone call. The disadvantage from a lawyer’s perspective is that you sometimes end up doing the insurer’s dirty work by telling a client why certain material can’t be used. Because the insurer’s lawyer relies on production lawyers to decide whether to grant insurance, your lawyer is obliged to identify problem areas. If they do not, you (and the broadcaster) could end up being liable for the omission and your lawyer’s credibility can be affected.

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Errors & Omissions Insurance

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Digital Film Insurance and the Future

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

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

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.

  • 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, Avator, was shot on digital cameras as well.

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 insurer’s

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?

Various technical considerations arise when contrasting film vs. digital cinematography ie. 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 date to/from 2D to 3D conversion, losses resulting from migration of data from old forms of storage to new forms. Also, 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 arise during post production and storage of data.  

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Tags: Short Film Production Insurance, Film Insurance, Production Insurance, Entertainment Insurance, Entertainment Insurance Broker, Film Production, Multimendia Risk, Film Insurance claims, Film Producers, DICE Policy, Documentary Insurance, HD E&O, Documentary Films, DICE Insurance

Film E&O Insurance Clearance Procedures for Producers - Part 3 of 3

Posted by David Hamilton on Jun 5, 2010 12:04:00 PM

Proper film E&O insurance clearances for your film will result in the best possible coverage and cost for your producers E&O insurance policy - otherwise known as multimedia E&O.

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  1. If the Production involves actual events, it should be ascertained that the author’s sources   are independent and primary (contemporaneous newspaper reports, court transcripts, interviews with witnesses, etc.) and not secondary (another author’s copyrighted work, autobiographies, copyrighted magazine articles, etc.).
  2. Shooting script and rough cuts should be checked, if possible, to assure compliance with all of the above. During photography, persons might be photographed on location dialogue added or other matter included which was not originally contemplated.
  3. If the intent is to use the Production on Videotapes, Videocassettes, Videodiscs or other technology, rights to manufacture, distribute and release the Production must be obtained, including the above rights, from all writers, directors, actors, musicians, composers and others, connected to the work, including proprietors of underlying materials.
  4. Film Clips should not be used unless licenses and authorizations for the second use are obtained from the owner of the clip or party authorized to license the same, as well as licenses from all persons rendering services in or supplying material contained in the film clip; e.g., underlying literary rights, performances of actors or musicians. Special attention should be paid to music rights as publishers are taking the position that new synchronization and performance licenses are required.
  5. In addition, dead persons (through their personal representatives or heirs) have a “right of publicity”, especially where there is considerable fictionalization. Clearances must be obtained where necessary. Where the work is fictional in whole or in part, the names of all characters must be fictional. If for some special reason particular names need not be fictional, full details must be provided to the Company in an attachment to the Application.
  6. Consideration should be given to the likelihood of any claim or litigation. Is there a potential claimant portrayed in the Production who has sued before or is likely to sue again? Is the subject matter of the Production such as to require difficult and extensive discovery in the event of necessity to defend? Are sources reliable? The above factors should be considered in your clearance procedures and recommendations.
Please contact us if you have any further questions. Applications are available on our website.
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Tags: Film Production Insurance, Film Insurance, Film insurance broker, Entertainment Insurance Broker, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Multimendia Risk, Multimedia Risk Insurance, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, HD E&O, Producers Errors and Omissions Insurance

Film E&O Insurance Clearance Procedures for Producers - Part 2 of 3

Posted by David Hamilton on May 29, 2010 9:28:00 AM

Proper film e&o insurance clearance procedures will allow your film insurance broker to obtain the best premium in the quickest possible time. What follows is part 2.

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  1. Whether Production is fictional or factual, it should be made certain that no names, faces or likenesses of any recognizable living persons are used unless written releases have been obtained. Release is unnecessary if person is part of a crowd scene or shown in a fleeting background. Telephone books or other sources should be checked when necessary. Releases can only be dispensed with if the Applicant provides the company with specific reasons, in writing, as to why such releases are unnecessary and such reasons are accepted by the Company. The term “living persons” includes thinly disguised versions of living persons or living persons who are readily identifiable because of other characters or because of the factual, historical or geographic setting.
  2. All releases must give the applicant the right to edit, modify, add to and/or delete material, juxtapose any part of the film with any other film, change the sequence of events or of any questions posed and/or answers, fictionalize persons or events including the release and to make any other changes in the film that the applicant deems appropriate. If the person is a minor, consent has to be legally binding.
  3. If music is used, the applicant must obtain all necessary synchronization and performance licenses from composers or copyright proprietors. Licenses must also be obtained on prerecorded music.
  4. Written agreements must exist between the applicant and creators, authors, writers, performers and any other persons providing material (including quotations from copyrighted works) or on-screen services.
  5. Whether the production is factual or fictional, if distinctive locations, buildings, businesses, personal property or products are filmed, written releases must be secured.          

This is not necessary if non-distinctive background use is made of real property.

  1. If the Production involves actual events, it should be ascertained that the author’s sources   are independent and primary (contemporaneous newspaper reports, court transcripts, interviews with witnesses, etc.) and not secondary (another author’s copyrighted work, autobiographies, copyrighted magazine articles, etc.).

If you have any questions about multimedia e&o, please speak to your entertainment insurance broker.
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Tags: Film Production Insurance, Film insurance broker, Entertainment Insurance Broker, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, HD E&O, Producers Errors and Omissions Insurance

Multimedia Risk Insurance Explained

Posted by David Hamilton on Jan 25, 2010 3:47:00 PM

Otherwise known as Producers Errors and Omissions Insurance, Multimedia Risk Insurance covers legal liability and defense for the production company  against lawsuits alleging unauthorized use of titles, formats, ideas, characters, plots, plagiarism, unfair competition or privacy, breach of contract. It also protects against alleged libel, slander, defamation of character or invasion of privacy. This coverage will usually be required by a distributor prior to the release of any theatrical or television production.

If coverage is required for the title, you must obtain a ‘Title Report & Opinion' from a recognised Film Title Clearance Company offering this service and submit the report to underwriters for final approval.

Premium indications prior to actual quotes when coverage is offered can vary; However a straight forward documentary would cost $5,000 and $7,000 for a feature film.

Upon instructions from the Production Company, the broker will begin clearance procedures where the attorney for the underwriter will review and approve your lawyers clear the project - there is a fee for this service which is included in the final premium. If coverage is not bound, the fee is payable to the attorney for the underwriter and an invoice will be issued accordingly.

You should check your production/distribution/financing agreements regarding the start date for Errors & Omissions coverage. Some financiers require Errors & Omissions coverage to be in place for the first day of principle photography.

It can take up to ten (10) working days for a project to be cleared and coverage to be in place.

 

Go to our website for more information: http://www.frontrowinsurance.com/

Tags: Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, E&O insurance for Films, E&O Insurance, Digital E&O insurance, HD E&O, Errors and Omissions coverage for films, Multimendia Risk, Multimedia Risk Insurance, Producers Errors and Omissions Insurance

New Entertainment Insurance Broker in Canada

Posted by David Hamilton on Jan 5, 2010 6:21:00 PM

We are pleased to announce that  Focus Entertainment Insurance Brokers Inc. will merge with the Entertainment Division of Jones Brown Inc. to form Front Row Insurance Brokers Inc.  Front Row is an independent insurance brokerage focusing on the needs of the entertainment industry. Our contact information is as follows:

 

Vancouver Office                                                          Toronto Office

 

604 - 1200 Burrard Street                                              480 University Avenue, Ste. 1100

Vancouver, BC V6Z 2C7                                                Toronto, Ontario  M5G 1V2

Tel: 604-684-3456                                                          Tel: 416-408-1920

Fax: 604-684-3437                                                         Fax: 416-408-4517

 

Montreal Office

 

331 boulevard Saint-Luc

Saint-Jean-sur-Richelieu, Quebec J2W 2A3

Tel: 450-359-6620

Fax: 450-359-8132

 

The merger will make Front Row one of the largest entertainment Insurance brokers in Canada, and will provide us with additional leverage when negotiating premiums, coverages and claims settlements for our clients.  The combined companies, which insured over one billion dollars in production budgets over the last 12 months, give us unmatched entertainment insurance brokering experience and negotiating strength in Canada.

Front Row arranges: feature film insurance, TV Series Insurance, Documentary insurance, film equipment insurance, webisode insurance, E&O insurance for films New Media Insurance, Fairs and Festivals Insurance, Art Gallery Insurance, musical instrument insurance, music insurance, and more entertainment related insurances.

Front Row employs 20 insurance professionals across our three offices, and is licensed in all ten Canadian provinces.

Should you have any questions please don't hesitate to contact one of our offices.

Tags: Annual Film Insuruance, Commercial Production Insurance, Documentary Insurance, Film Insurance, Special Event Insurance, Fairs and Festivals insurance, event cancellation insurance, Film Production Equipment, Film Production Insurance, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, E&O insurance for Films, E&O Insurance, HD E&O, Errors and Omissions coverage for films, Film insurance broker, musical instrument insurance, music insurance

Film Production Coverages Explained - Part 4

Posted by David Hamilton on Dec 15, 2009 3:42:00 PM

Producers Errors and Omissions liability insurance is an important coverage for any film producer. Producers E&O covers against all sums that the insured may become legally obligated to pay as damages resulting from lawsuits for:

  • a) Invasion or infringement of privacy. Does a character in your script inadvertantly resemble a real person?
  • b) Infringement of copyright or trademark
  • c) Libel, slander or other forms of defamation
  • d) Plagiarism, piracy or unfair competition resulting from the alleged use of titles, formats, ideas, characters, plots, performances of artists or performers or other material
  • e) 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
  • Policy includes coverage for legal expenditures incurred in the defense of any claim

Most broadcasters, distributors and sales agents will need to see evidence of e&o coverage in force for your project before they will enter into a contract with you. Distributors and broadcasters can typically be added to your E&O policy at no charge and evidence that they have been added can be evidenced by way of a certificate.

 The typical term of the policy is 3-5 years and the typical limit of coverage is: $1,000,000 per occurence, $3,000,000 in the aggregate with a $10,000 deductible

More film production insurance explained next post.

Tags: DICE Policy, Annual Film Insuruance, Documentary Insurance, Film Insurance, Film Production Insurance, Production Insurance, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, E&O insurance for Films, E&O Insurance, Digital E&O insurance, HD E&O

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