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

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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How a Specialized Film Insurance Broker can help your Production

Posted by David Hamilton on Apr 10, 2012 5:54:00 PM

A  film insurance broker helps identify the risks associated with your film production, TV series, Documentary, Webisode, Music Video ect.

Film InsuranceOnce the risks are identified, the risk can be transferred to an insurance company for a fee or premium. The film insurance broker negotiates the lowest possible premium and the broadest coverage available in the market place. In Canada, there are four film insurance companies: Chubb, Fireman’s Fund, Premiere and Travelers. Front Row is able to provide you with a quote from each of these companies in an easy to understand comparison format.

Unlike insurance agents - who work for the insurance company -  Insurance Brokers work for the client. Insurance brokers are recognized by law as experts in insurance. Insurance Brokers in Canada must pass a series of exams in order to be licensed and there is annual continuing education to maintain a license. Make sure your broker is licensed in the province that you are shooting your production or the production could be fined or subject to a surtax.

Insurance Brokers owe a higher duty of care to their clients than an Insurance Agent. Brokers represent the interests of their clients, not the insurance companies. They offer professional advice in arranging insurance on behalf of their clients.

Since insurance brokers are considered under the law as professionals, they are responsible for their actions and can be sued for professional negligence if their advice is deemed to be faulty. All licensed brokers therefore need to carry professional Errors and Omissions coverage. You should ask your broker the limit of E&O insurance that they cover:  $1,000,000 may not be enough once defense costs are deducted from the limit.

The many roles of a broker include: 

  • Negotiate with the insurance companies on behalf of clients. There are four insurance companies in Canada: an Insurance broker must be familiar with what these companies offer so that the best price and coverage is procured for the producer.
  • Brokers facilitate claims - Because the broker works on behalf of the client, it is their duty to ensure that insurance companies pay the full amount of the claim that the client is entitled to.
  • The broker acts as a conduit for communication between the insurance company and the client. This includes providing certificates for banks, bonding companies and locations to evidence coverage allowing banks to release funds to the client, locations to be locked by the location manager and equipment to be rented.
  • Advise clients on ways to limit potential liabilities during production.
  • Review scope of the client's existing insurance policies to reveal gaps or deficiencies in the coverage.
  • Comprehensive examination of the clients production to assess the amount and type of insurance required. A broker will also help the client understand what coverage they have and do not have and they can explain any limits to the coverage.

It is important to deal with a broker that understands the specific language shown on Film Production Policies. For this reason, it is strongly suggested that you seek out a specialized Film Insurance Broker when you need insurance for your production.

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

Posted by David Hamilton on Feb 27, 2012 2:19:00 PM

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

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 deemphasized 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. 
- Robert Galletti

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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.

Producers' Errors and Omissions Insurance  Learn More

Errors & Omissions Insurance

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Brain Drain North: L.A. Broker Joins Front Row Insurance in Vancouver

Posted by David Hamilton on Dec 7, 2011 4:42:00 PM

Mike Groner tapped to bring skill, initiative and innovation to the brokerage house

Michael Groner Vancouver, BC, September 30, 2011 – Front Row Insurance, specialized entertainment insurance brokers, has announced the addition of an experienced entertainment broker to its Vancouver office. Mike Groner, who has been a successful manager at two of California’s most venerable and trusted insurance companies, will now provide the special-market brokerage house with compelling marketing and promotion of the innovative programs it has been offering since the company’s founding in 2009.

According to David Hamilton, president of Front Row Insurance, Mike will use his LA experience to service film and new media producers in Vancouver as well as managers of fairs and festivals. “ Due to our size and volume with the insurance companies, we have rates and coverages that help us stand apart, and Mike knows how to effectively communicate those benefits to professionals in the industry who will gain from Mike’s expertise,” he says. “With Mike’s help, our clients will have more time to make films and promote festivals instead of wasting time trying to find out how to best protect their assets."

Groner began his career in e-marketing as vice president with an online skateboard retailer, before moving into entertainment insurance with such firms as CMM Entertainment as an account manager, and Truman Van Dyke as director of sales and marketing. Both are respected brokerages in California, with decades of experience. At CMM, he handled proposals and summaries for many top clients involved with production, touring, and special events. At Truman Van Dyke, he was responsible for the development of two new insurance programs for the entertainment industry that were very successful for the company and its clients.

Mike Groner is looking forward to his new role at Front Row Insurance, where his skills and initiatives will be put to good use.  

For more information contact David Hamilton at 604-684-3456 or david@frontrowinsurance.com.

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Film and TV Producers Errors and Omissions Insurance Cost

Posted by David Hamilton on Aug 9, 2011 3:23:00 PM

E&O Insurance Costs

Producers' Errors and Omissions Insurance  Learn More

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 E&O coverage is in force.

A producer will need to complete an application (contact david@frontrowinsurance.com for a copy).

If coverage is required for the title, you must obtain a ‘Title Report & Opinion' from a recognized Title Clearance Company offering this service and submit the report to underwriters for final approval. You will also need a clearance report. Who needs a Title Report? Click here to read more.

Premiums for E&O vary based on the content of the production: a straight forward documentary would cost $3,000 to $4,000 and $5,500 to $7,000 for a feature film for the industry standard three year policy term. 

Every project is unique and requires a unique, custom E&O policy. 

Upon receiving  instructions from the Production Company to proceed, the broker will begin the clearance process. The lawyer for the underwriter will review and approve the clearances done by the producer’s lawyer. The fee for the insurance company lawyer’s service is included in the final premium. If coverage is not bound, the insurance company clearance fee (approximately $600) is payable 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 before they will release payment to the producer. 

It can take up to ten (10) working days for a project to be cleared and coverage to be in place so start early to ensure that your cash flow is not impacted. 

The e&o policy will provide defense costs if the producer is sued and will pay the judgment costs if the producer is found liable. Until a lawsuit happens it provides the comfort of peace of mind.

Front Row Insurance Brokers are specialized film and entertainment insurance brokers. We are delighted to assist producers and production companies with their production insurance questions - please contact us today!

Canada: david@frontrowinsurance.com.

US: Mike@frontrowinsurance.com

www.frontrowinsurance.com

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