E&O: What Filmmakers Need to Know

Posted by David Hamilton on Jan 9, 2019 4:59:44 PM

E&O: WHAT FILMMAKERS NEED TO KNOW

E&O insurance

As a filmmaker your top priority is likely bringing your next production to life and maintaining creative inspiration, but you also know how important the business side of film production is.

This includes understanding the legal and insurance requirements needed to protect your next film. Insurance is a critical part of the film business, especially E&O (Errors and Omissions). If you understand what E&O is and how it can actually serve your production needs, you’ll set your next film up for even greater success.

Here’s how:

GETTING TO KNOW E&O

Producers Errors and Omissions Insurance covers all of the potential legal liabilities and defense costs against lawsuits alleging unauthorized use of titles, formats, ideas, characters, plots, plagiarism, unfair competition or privacy, and breach of contract. It also protects against alleged libel, slander, defamation of character or invasion of privacy. Errors & Omissions is a requirement for distribution deals with studios, television, cable networks, DVD and Internet sites prior to the release of any film production. In fact, if you haven’t released a film yet, you’ll discover that production financing will probably not flow until your E&O coverage is in force.

HOW IT WORKS

Consider the risks: You’ve released a film that is a HUGE success, and someone accuses you of stealing their idea, or script. No surprise, this happens a lot. For example, after AVATAR was released in 2009, a man spoke out and claimed that he had actually pitched this multi award winning movie to AVATAR Producer, James Cameron a few years earlier. An E&O policy would provide a lawyer in this instance and would pay the legal fees and judgement costs if the filmmaker lost.

Planning an online production? YouTube is a hot bed for E&O disputes. A while back, a music video director posted a parody of a well known movie that went viral, garnering over 1 million views, but unfortunately he didn’t have E&O and the video was taken down as he could not afford the legal costs. A big loss for him and one he could have avoided if he had obtained E&O coverage.

WHAT E&O COSTS

Premiums for E&O vary based on the content of the production. A straight forward documentary typically cost $2,500 to $4,000 while you can expect to pay $3,500 to $8,000 for a feature film for the industry standard 3-5 year policy term. Every project is unique and requires a custom E&O policy. Standard limits are $1,000,000 per claim/$3,000,000 aggregate with a deductible of $10,000. Ideally, speak to an E&O insurance expert who can advise on the risks related to your particular film. We’d love to help with that.

YOUR NEXT STEPS

  1. The first thing an insurance provider will ask you is: Do you have “Title and script Clearance”? This is a way to discover if you’ve done your legal due diligence to make sure you aren’t engaging in copyright infringement and that you have the right to use the story and title. As you set out to obtain E&O, as a filmmaker you must begin clearance work prior to principal photography, continue during filming and complete it at final cut. Note: It can take up to 10 working days for a project to be cleared and coverage to be in place so you’ll want to start the E&O process early to ensure that your cash flow is not impacted.
  2. Once obtained, be sure to check your production/distribution/financing agreements regarding the start date for your coverage, as some financiers require Errors & Omissions coverage to be in place for the first day of production before they will provide the first cheque that allows you to start production.
  3. Your 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, enjoy peace of mind knowing you’ve got the right coverage in place.

About the contributor: David Hamilton is President + CEO of Front Row Insurance, one of the world’s largest entertainment insurance brokers. Front Row offers E&O insurance for filmmakers. E&O Policies start at $1,250 and certificates proving insurance coverage are provided immediately at no cost.

 

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: E&O insurance for Films, TV and Film Producers E&O Insurance cost, Producers E&O Insurance, HD E&O, E&O Insurance Deductable, Producers E&O Insurance quote, E&O copyright report

Multimedia Insurance Coverage

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

shutterstock_785222245

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.

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

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

James Cameron's Avatar and E&O Insurance

AVATAR

TV and Film Producers E&O protects producers from unfounded claims ALLEGING 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.

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 defense 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.

Topics: 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

Film Insurance Brokers: Proper Licensing Protects Your Production

Posted by David Hamilton on Nov 4, 2012 1:27:00 PM

FILM INSURANCE BROKER LICENSING

Did you know:

  • Your Film broker must be licensed in each province that they place business in?
  • There are penalties for conducting business as a Film Insurance broker in a province in which one is not licensed?
  • There are potential consequences for a broker’s client if their broker isn’t properly licensed?

Each province has it’s own Insurance Act. Each province is in charge of enforcing the rules according to their unique Act. Given that the auto market within each Province has separate laws and regulations, insurance will be governed by separate rules within each Province

If a broker is found in violation of a Provincial Insurance Broker Act, they will potentially face not only fines and possible imprisonment, but also have their credibility and reputation tarnished.

An insurance company could reject a claim on the basis that the broker wasn’t properly licensed. Make sure the Film Insurance Broker you are dealing with is licensed in the province where you have incorporated your film production company.

Front Row is a specialized Film Insurance Broker that is licensed and registered in all Canadian provinces.

Topics: Film Production Insurance, Film Insurance, Production Insurance, Entertainment Insurance, Film insurance broker, Entertainment Insurance Broker, Film Production Insurance claims, Film Production Insurance Premiums, Specialized film insurance broker, Film Production, Film Producers, TV and Film Producers E&O Insurance cost, Commercial Production Insurance, Front Row Insurance Brokers, Film Production Companies, Front Row

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

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

Distributor's E&O Insurance

Distributor's E&O insurance

Much like the producer's E&O insurance, the distributor's 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. I.e., 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.

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 Production Insurance, Production Insurance, Film Production Insurance claims, E&O insurance for Films, E&O Insurance, TV and Film Producers E&O Insurance cost, Canada Film Broker, E&O, Commercial Production Insurance, Documentary Insurance, Digital E&O insurance, Title reports, Front Row Insurance Brokers, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, Producers Errors and Omissions Insurance, Script Clearance reports

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

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

CLAIMS MADE vs. OCCURRENCE BASED E&O

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. I.e, 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.

 

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 i.e., Documentary, TV Series
  • Subject matter of production
  • Production Budget
Contact Front Row Insurance Brokers to learn more about Film Errors & Omissions Insurance coverage. 
 
 
 
 

Topics: Short Film Production Insurance, Film Insurance, Production Insurance, Entertainment Insurance, Film insurance broker, Entertainment Insurance Broker, Film Production Insurance claims, Film Production Insurance Premiums, Film Production, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Multimendia Risk, Multimedia Risk Insurance, Film Insurance claims, TV and Film Producers E&O Insurance cost, E&O, DICE Policy, Digital E&O insurance, Title reports, Front Row Insurance Brokers, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, Producers Errors and Omissions Insurance, DICE Insurance, Front Row

New Film Insurance Company in Canada - Competition Benefits Producers

Posted by David Hamilton on May 28, 2012 11:50:00 AM

The Fireman’s Fund Insurance Company has opened an office in Toronto.

As Canada’s largest Film Insurance Broker, we have been selected as an approved broker that can obtain quotes and production coverage from Fireman’s Fund.
 

Front Row is an independent broker that represents Film Producers – not the insurance companies. We can offer you quotes for your project from all four of the Film Insurance companies in Canada: Chubb, Fireman’s Fund, Premiere and Travelers.

If you are not receiving four quotes from the broker that you are using, please contact us and we would be happy to provide the missing quotes so that you ensure you are receiving the best premium and coverage available in the marketplace.

We can make the process simple for you.  If you are able to provide us with the following information, we will have an indication of costs and/or a quote for you within 24 hours or less:

  1. Dates of  Filming
  2. Copy of Budget Top Sheet
  3. Synopsis and Script

There is no cost or obligation – you have nothing to lose and you may benefit with a lower premium.

Our staff have a combined 205 years of experience insuring film productions in Canada.  In the event of a claim, we will ensure that you are paid the money you are owed as quickly as possible.  We have offices in Montreal, Toronto and Vancouver with a staff in excess of 16.

Articles about our firm are available on our website.

Topics: Film Production Insurance, Production Insurance, Entertainment Insurance, Film insurance broker, Entertainment Insurance Broker, Film Production Insurance claims, Film Production Insurance Premiums, Specialized film insurance broker, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Multimedia Risk Insurance, Film Insurance claims, Film Producers, TV and Film Producers E&O Insurance cost, Canadian Insurance Broker, Canadian Insurance, Canada Film Broker, Film production equipment insurance, DICE Policy, Commercial Production Insurance, Documentary Insurance, Front Row Insurance Brokers, Producers Errors and Omissions Insurance, DICE Insurance, Film Production Companies, Front Row, US Insurance Broker

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 Production Insurance, Film Insurance, Entertainment Insurance, Film insurance broker, Entertainment Insurance Broker, Film Production Insurance Premiums, Film Production, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Multimendia Risk, Multimedia Risk Insurance, Film Insurance claims, Film Producers, TV and Film Producers E&O Insurance cost, Canadian Insurance Broker, Canadian Insurance, Canada Film Broker, E&O

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

E&O INSURANCE COST

E&O COVERS THE PRODUCTION CO. AGAINST LAWSUITS ALLEGING UNAUTHORIZED USE.


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 TV 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.

Premiums for E&O vary based on the content of the production: a straightforward 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 therefore 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 E&O 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!

Canadadavid@frontrowinsurance.com

US: mike@frontrowinsurance.com

MORE E&O articles FROM FRONT ROW

Topics: Film insurance broker, Specialized film insurance broker, E&O insurance for Films, E&O Insurance, Errors and Omissions coverage for films, Multimedia Risk Insurance, TV and Film Producers E&O Insurance cost, Front Row Insurance Brokers, Producers Errors & Omissions Liability Insurance, Producers E&O Insurance, Producers Errors and Omissions Insurance, Advertising