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.

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Copyright Reports: Use Them To Minimize The Potential Of A Producers E&O Claim

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

Office_Contents_InsurancePrior 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 movie sued for copyright infringement.  Plaintiff alleges that her unpublished novel is 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.

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

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

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

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

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

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

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

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

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

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 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 6845651011_37e23833d0_oinvolvement 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 ofa 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.

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

Tags: Producers E&O Insurance, producers errors and omissions claims, producers errors and omissions policy, producers e and o insurance quote

Producers Errors and Omissions Insurance Quote: Are You Being Offered The Right Coverage For Your Needs?

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

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

599556_62182110-resized-600To 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 Web sites after the policy incepts.

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

Tags: Producers E&O Insurance, Producers Errors and Omissions Insurance, producers errors and omissions quote, Producers E&O Insurance quote

Producers E&O Insurance: Avatar Producer Receives Credit Where Credit Is Earned Thanks In Part To Producers E&O Insurance

Posted by David Hamilton on May 26, 2015 11:53:00 AM

TV and Film Producers E&O protects producers from unfounded claims elleging misappropriation of film story ideas.

AVATAR is a movie that was released in 2009. Most people think James Cameron came up with it, including James Cameron. Until one day a man spoke out and claimed that he pitched this multi award winning movie to Cameron. Sounds like a case where Producer’s Errors & Omissions insurance might come into play.shutterstock_112856104

Apparently the two had a meeting in the early nineties, and it was at this meeting that Cameron, also known as the director of TERMINATOR decided to start getting movie ideas from someone he barely knew. Not likely! As the Judge put it: Cameron’s ideas before 1991 included “transporting consciousness to another form, evil mercenaries attempting to exploit resources in a jungle-ike setting, a jungle containing bioluminescent plants and unusual animals, a protagonist fighting alongside natives against a superior fighting force and a sentient planet.” Since the plaintiffs claims appear to be somewhat frivolous, let’s take a look at producer’s errors & omissions insurance and see how it would help in this situation.

Producers Errors and Omissions 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, broadcaster or financier prior to the release of any theatrical or television production. Production financing will usually not flow until Producers E&O coverage is in force.

When quoting Producer’s Errors and Omissions insurance on a film project, we always ask if the producers have “Title Clearance” and if they have done their legal due diligence to make sure they aren’t engaging in copyright infringement. In the case of AVATAR, Cameron would have had to represent on the Producers E&O application that to the best of his knowledge he was not willfully copying someone else’s work. In the event of a law suit the insurance carrier will cover defence costs associated with the suit. In addition, the Producers E&O will even pay for rulings against the E&O policy holder. If, however, the client has misrepresented a fact or committed a crime, the Producer’s Errors and Omissions policy becomes void. Film and TV Producers Errors and Omissions insurance is a worthwhile investment if you're a film producer.

 

 

 

 

 

 

 

Tags: E&O insurance for Films, E&O Insurance, TV and Film Producers E&O Insurance cost, Producers E&O Insurance, Producers Errors and Omissions Insurance, title clearance

Power Rangers and producers errors & omissions insurance

Posted by David Hamilton on May 13, 2015 2:51:00 PM

Looks like a recent parody web video didn’t have producers errors & omissions insurance. A music video director by the name of Joseph Kahn posted a 14-minute Power Rangers parody on Youtube and it quickly went viral, garnering 1.4 million views.

All is not well, however, as Kahn says he is being harassed by the owners of Power Rangers to take the video down because they say he is willfully engaging in copyright infringement. This is what producers errors & omissions insurance is for.

producers errors & omissions insuranceYou see when you embark on a parody production you are immediately on shaky grounds in terms of copyright infringement. If, however, Mr. Kahn had purchased producer’s errors & omissions insurance, the in-house legal counsel would have run title clearance to make sure that he was not doing what he is currently being accused of. In short it likely would have been impossible for him to get insurance had he disclosed that he was using the intellectual property of Power Rangers without written consent. If this is true and he wasn’t able to get insurance then he would be financially responsible for any court ordered restitution he is ordered to pay to the ip holders. All hope is not lost, however.

Legal experts are saying there is a gray area where fan fiction is concerned. Usually it’s done by a little guy with not a heck of a lot of scratch and is a judge really going to side with a billion dollar studio over “Fred from his parent’s basement?” Doubtful. In any case, if purchased,  producer’s errors & omissions insurance will cover court costs and settlements where the copyright infringement was proven unintentional. Having said this it is important for content creators to do their own due dilligence.

Otherwise not even the Power Rangers will be able to save them once the blank hits the fan.

The fan of Power Rangers.

Tags: E&O insurance for Films, Errors and Omissions coverage for films, Producers E&O Insurance, Producers Errors and Omissions Insurance

Distributor's Errors and Omissions (E&O) insurance

Posted by David Hamilton on Sep 26, 2012 6:33:00 PM

Much like the producer's E&O insurance, distributor's Errors and Omissions (E&O) insurance covers  distributors from lawsuits that may arise due to the content of the material they are distributing.

Distributor's E&O insurance differs  from Producer's E&O in that distributors are insured for a list of titles they are distributing. In order to add a production to a distributors E&O policy a minimum of one year of E&O policy needs to have been in force. For each film that you distribute, you will need to ask for evidence of previous e&o coverage.

The premium is determined by the estimated annual revenue that is expect from the list of titles to be insured. A deposit premium is paid and then the deposit is adjusted at the end of the policy year based on actual distribution revenue. A distributors policy is typically much less expensive as compared to extending individual e&o policies. The adjustment rate is usually 10 cents per $1000 of revenue.

To get a quote, we will need to have an application completed and we will need a list of the titles to be covered. Would you like me to send you a copy of a blank application?

WHY E&O POLICIES ARE NEEDED?

  1. Ie. The script of your movie/show is slightly similar to another production, therefore a claim for plagiarism could arise.
  2. Covers the insured against defamation, libel and slander suits
  3. Covers against intellectual property rights
  4. Typically most distributors and broadcasters will not distribute or air any production without it.
  5. It protects a company or individual from financial loss.

 

TYPICAL E&O CLAIM SCENARIOS

  • An action brought against a production company for the production of a movie which is similar to events depicted in a novel.
  • A defamation/slander suit brought against a production company based on a recognizable likeness  between a fictional character in a tv series and an actual person.
  • A production company is sued for unauthorized use of Titles and/or Music/Stock Footage, for not acknowledging underlying works such as books, scripts of screenplays or for not requesting permission to acquire rights

Tags: Commercial Production Insurance, Documentary 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, Producers Errors and Omissions Insurance, Film Production Insurance claims, Script Clearance reports, Title reports, Front Row Insurance Brokers, TV and Film Producers E&O Insurance cost, Canada Film Broker, E&O

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

Film Insurance: E&O Claims Made Policies Vs. Occurrence Policies

Posted by Mike Groner on Jul 10, 2012 4:31:00 PM

CLAIMS MADE E&O POLICIES

Claims Made E&O Policies cover claims that are made during the policy term. The loss may have occurred in the past, but as long as it is reported during the current policy term, it can trigger coverage. In order for coverage to continue, the policy must stay in force.

With this type of policy, endorsements can be made so that the policy responds to incidents which occurred before the policy start date, also known as “Prior Acts” coverage. Tail Coverage is another  extension that can be obtained wherein the insurer will cover events that occur while the policy is in force, but which the insured is unaware of during the policy period, and are reported to the insurer after the policy terminates. By obtaining tail end coverage, the claims based policy is in effect converted to an occurrence policy.

 

Pro’s of a Claims Made E&O Policy

A benefit of this type of policy is that if a claim arises relating to incidents which occurred before the policy start date, the claim may be covered. Another reason why this type of E&O policy is purchased is because it is less expensive than occurrence based policies. Typically the premium increases over the first five years of coverage in increments proportional to the claims reporting for that experience.

 

Con’s of a Claims Made E&O Policy

Once a “claims-made” policy has expired, purchasing insurance for past events will become difficult, expensive and perhaps not possible. Once coverage has expired, claims can no longer be submitted, even if the claim occurred during the policy term.

 

OCCURRENCE BASED E&O POLICIES

Occurrence based E&O policies cover losses that occur during the policy term as long as the project/film is released or broadcast during the dates at which an incident causing damage occurs. Although the loss can be reported years later, it must have “occurred” during the policy term. This type of E&O policy may  not cover occurrences that happened prior to the policy being in force.

 

Pro’s of an Occurrence Based E&O Policy

A benefit of this type of policy is that there is no need to renew the policy to maintain coverage. Also, years after this type of policy has lapsed, a claim can be made for incidents that occurred while the policy was in force.

 

Con’s of an Occurrence Based E&O Policy

This type of E&O policy is typically more expensive than claims based policies because the insured is prepaying for tail costs whether the tail gets used or not. Another disadvantage is that if a claim arises before delivery to the broadcaster or distributor, any defense costs associated with the claim may not be covered. It’s important to speak with your broker about whether Prior Acts coverage is included on your Occurrence Based Policy.

 

WHY E&O POLICIES ARE NEEDED?

  1. Ie. The script of your movie/show is slightly similar to another production, therefore a claim for plagiarism could arise.
  2. Covers the insured against defamation, libel and slander suits
  3. Covers against intellectual property rights
  4. Typically most distributors and broadcasters will not distribute or air any production without it.
  5. It protects a company or individual from financial loss.

 

TYPICAL E&O CLAIM SCENARIOS

  • An action brought against a production company for the production of a movie which is similar to events depicted in a novel.
  • A defamation/slander suit brought against a production company based on a recognisable likeness  between a fictional character in a tv series and an actual person.
  • A production company is sued for unauthorized use of Titles and/or Music/Stock Footage, for not acknowledging underlying works such as books, scripts of screenplays or for not requesting permission to acquire rights.

 

WHAT CAN AFFECT THE COST OF AN E&O POLICY?

  • Whether an attorney’s services were used to secure clearances and licenses
  • The coverage limits
  • Coverage Territory
  • Type of distribution
  • Type of production ie. Documentary, TV Series
  • Subject matter of production
  • Production Budget
Contact Front Row Insurance Brokers to learn more about Film Errors & Omissions Insurance coverage.  

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