Fair Use Misconceptions and Filmmaker E&O Insurance Part II

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

 

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FAIR GAME? - A FAIR USE PRIMER FOR DOCUMENTARY FILMMAKERS (Part 2)

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

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

  • If I only use a few seconds of the underlying work, I should be okay.” The logic behind this is easy to follow and, as discussed in our previous article, there is some truth to it. The more you borrow from a previous creator, the more likely a lawsuit—it’s more likely the rights holder will take notice, and more likely that they’ll feel their commercial interests have been impaired. However, the proportion of the original work that is used is just one of a myriad of factors a judge would consider in the event of a copyright dispute.

 

  • “I got it from the Internet, so it should be free to use.” This misconception is less common than it used to be, but still exists. In its early days, the Internet was thought of as a kind of “Wild West” where the traditional legal frameworks didn’t necessarily apply. Today, as the Web becomes more sophisticated and ubiquitous, we know that’s no longer true. The general legal understanding now is that the moment a work is fixed in a particular creative medium, copyright exists. For example, technically speaking, a copyright exists the moment a person takes a photograph. For that reason, when making use of copyrighted material from the internet, the documentary filmmaker must exercise a level of care equivalent to that used when considering the use of any other type of copyrighted material.

 

  • “I’m using copyrighted material, but it’s okay because I gave credit to the author.” It may seem like this is just common sense—how could anyone claim that you’ve ripped off their work if you openly attribute it to them? In reality, this is not an automatic defense. In fact, a court of law could argue that by giving credit to the author, you are implicitly acknowledging that the material in question belongs to them. Without knowing it, you may also be tacitly validating their claim of ownership (and potentially their claim of infringement). This is not to say that giving credit to the owners of copyrighted material is not the right thing to do (it is), just that doing so in itself is not a complete defense against claims of copyright infringement.

 

  • “I need to ask permission from the copyright holder first.” Referring back to #3 above, you’ll recall that a rights holder might actually interpret your request for permission, in itself, as a sign that infringement has taken place (“if you’re asking me for permission, you already know you don’t have the right to use it”). Another perfectly logical assumption that does not necessarily hold in the complicated landscape of copyright issues. If your use of the copyrighted material in question already falls within the definition of fair use, you are not required to obtain permission from the rights holder first.

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

Tags: Fair Use for Documentaries, Fair Use Doctrine, E&O Policy for producers, producers errors and omissions policy, producers e and o insurance quote

Protecting your script with Producers E&O insurance

Posted by David Hamilton on Oct 2, 2018 2:27:48 PM

Ensure Your Story is Told. Protect your Script.

Your team has recently secured the rights to a popular book, and you’re ready to make it into a feature film. You’re excited to get started bringing the concept and promise of the book to life, and you hire a respected screenwriter to adapt the book for the screen. You’re working on revisions when suddenly a letter arrives from another screenwriter who claims that he pitched a very similar script to the director not long ago.

All of a sudden, things aren’t going to plan...

Legal counsel to defend such cases is costly, and even if the matter is resolved without a lawsuit it will still drain valuable time from your production schedule.

No amount of preparation can totally eliminate the risk.

That’s why even when you know you’ve covered your bases, you still need insurance to protect you if something goes wrong. That’s where Errors & Omissions insurance (“E&O”) can help.

Among other things, it offers protection against:

  • Claims of plagiarism
  • Libel/slander accusations
  • Accusations of defamation of character or invasion of privacy
  • Lawsuits arising from alleged unauthorized use of
  1. Titles
  2. Formats
  3. Ideas
  4. Characters
  5. Plots

The policy will pay for legal defense if a third party sues you for the above reasons, even if the claim has no merit, and provides peace of mind after your initial due diligence is completed. Finally and perhaps most importantly, many distributors require that you have this coverage in place prior to greenlighting release of your film.

Don’t let your film get derailed before it even gets on track; contact us to ensure you have the right coverage.

Tags: screenwriters, E&O Policy for producers, E&O Insurance for producers, producers errors and omissions policy

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

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