Error & Omissions（E&O） Insurance Producers
Producers Error & Omissions Insurance
Coverage Overview (Include but not limited to)
Defamation: You will be covered for libel, slander and malicious falsehood
Violation of Copyright Laws and Regulations
Infringement of Intellectual Property: You will be covered for infringement or plagiarism of third-party intellectual property rights including names, trade names, trademarks, service marks, titles, formats, conceptions, characters, character names, character traits, plots, music and songs, performances and slogans.
Breach of Contract: You will be covered for breach of contract or other agreements on delivering works of literature, drama, music or similar materials, which incurs losses to the original author.
What is E&O
Liability insurance for film producers and distributors to against lawsuits resulting from:
- Defamation, libel, slander
- Unintentional breach of confidentiality or invasion of privacy
- Unintentional infringement of copyright, title, slogan etc.
- Negligent act, negligent error, negligent omission or negligent misstatement
Why is E&O Important
- Contractual requirement for productions which are distributed overseas (mainly USA requirement)
- More Chinese co-productions with USA and more Chinese films overseas = requirement for
E&O in China
- Coverage Overview
- Claims made form
- Policies purchased on a per production basis with single policy periods of 1-5 years
- Limits purchased are USD 1-5m normally on a every claim and in the aggregate, i.e. USD 1m each claim/3m in aggregate
- Coverage must be Worldwide including USA (95% of requirements because of USA distribution or exhibition contracts)
Top 5 THINGS EVERY PRODUCER SHOULD KNOW
Due Diligence of Intellectual Property(IP) Rights in a Movie
Lawsuits surrounding movies often arise from copyright infringement or defamation which can have dire consequences. In the worst-case scenario, the audience does not get to see the movie and producers may also be liable to damages. There are a few things that producers and distributors may do to minimise their exposure to litigation risks and potential losses relating to use of IP rights:
- Title Report
Choosing a movie title is an important decision. Imagine that you receive a letter telling you to cease and desist any use of a particular title after your first big wave of promotion, the money used to promote the movie would become a waste.
In determining whether you can use a certain movie title, you can obtain a title report from research companies. Research companies would search various databases, including trademark registries, domain name records and the Internet etc. and list all the films, books, songs and productions that bear the same or similar title you propose to use. Based on the report, experienced attorneys can determine whether the title is clear to use and issue a title opinion. If a certain title is not available, you may consider adopting a different title or attempting to negotiate a license to use the title from the third party owner of any prior rights.
- Copyright Report
If the movie you are making is your original work, the issue of copyright ownership is more straight-forward. But if the movie you are making is based on another work, such as a book or another film, you should acquire, obtain written permission or license to use the relevant work before making your movie.
A copyright report is search of the records of copyright and other databases. Such report will assist you in identifying the owner of the underlying work and whether there may be any conflicting assignments that may affect you from using the underlying work. After acquiring the rights to use the underlying work, you are recommended to record the transaction with copyright offices. Such transaction will then be reflected on the copyright report to prove that you have the right to proceed with the project.
However, there are limitations in the information that can be revealed since there are some jurisdictions which do not provide registration of copyright and not all works are registered even if registration is available. If there are any ambiguities, gaps or problems in the chain of title of the copyrights, you should seek legal advise from experienced entertainment lawyer to ascertain if you have the right to commence a project.
- Script Clearance
Contents arising from a movie are often the subject of lawsuits against movies. Before the commencement of principal photography, you should carefully review the script for the following:
► if anything in the script may contain defamatory statements about a person or an entity;
► check the names, telephone numbers, addresses, business names used in the script against the internet and phone book of the locate in case it may violate any rights of privacy;
► if any props/ scenes may contain third parties’ trademarks or copyrighted works(such as a product, a photogragh or a film clips etc.)
which may give rise to infringement issues.
it is useful to sit down with your writers to go through the script or to obtain an annotated guide. The aim is to identify ever character, location and event, and state where the inspiration for each item originated, whether they are original or whether they can be connected to events, people or places in the real world. It is possible to obtain script clearance report from third party service providers, but your attorney may also conduct the clearance before the commencement of production.
- Music Rights
Obtain permissions to use the music in your film. Using a compose to write original music throughout your production helps avoid music clearance provided that you have proper agreements with the composer and other contributors to ensure you have all the necessary rights assigned to you(see (5)below). If you use pre-existing music in your production, the basic rule is to ask for permission from the composers or copyright owner, usually the music publishers and/ or the record companies for the pre-existing music, which would include all necessary synchronization and performance licenses.
- Assignment and Releases from all contributors
Every production involves numerous parties, such as writers, directors, performers, set and costume designers, sound mixers etc. The work created by these contributors to make sure appropriate clauses are in place to assign all IP rights to the production company, to include a warranty that their work dose not infringe a third party’s IP and to indemnify the filmmakers in the event of infringement is found. Distributors will often require specific language to appear in all agreements before it agrees to the distribution of the production, such as clauses granting the right to publish, distribute, edit or delete the works by these contributors.
Even if you have completed the above due diligence, it is impossible to prevent someone from suing you. It is impractical for filmmakers to deal with all these aspects while also focusing on their creative work. A common practice in the industry is to purchase errors and omissions(E%O) insurance, a form of professional liability insurance which protects movie producers and distributors from lawsuits arising from contents of the production such as copyright and trademark infringement, defamation, unauthorised use or misappropriation of title, characters or ideas etc. Apart from getting peace of mind, E&O coverage is often a pre-requisite for distribution deals (particularly in the US) with studios, television, cable networks and, nowadays, the internet as the distributors would also want to have the same protection for themselves against lawsuits.
Intellectual Property (IP) Protection of Movies
The previous section deals with how you may protect your production against potential legal claims based on IP rights. In the following section, we will deal with how you may protect the IP rights in the production you created.
Copyright is particularly important for the movie industry. Copyright is the right given to the owner of an original work, which includes film, music, literary work (such as a script) and artistic works (such as set and costume designs). It dose not require the work to have an aesthetic value nor to be something new. It protects the creative or artistic expression of an idea, not the idea itself. It exists automatically as soon as the work is created and fixed in a tangible form. While it is not necessary to formally register works to benefit from copyright protection under the Berne Convention you should take steps to identify yourself as the copyright owner of the work you created. You should always actively document the creative process as evidence of ownership and creation, including the creation date, place and authors involved.
- Protect the scripts and the final product
Register your copyright work where registration system is available (for example US and China) as registration is usually the prima facie evidence to establish copyright ownership. Writers may register copyright for their books and scripts; producers may register their finished movies etc. In some jurisdictions, the relevant motion picture of associations may accept recordal of the finished movies to identify yourself as the copyright owner.
If registration system is not available (and in any event), a copyright notice should at least be included to inform the public who the copyright owner is and when the copyright is created. Keep records of not only the final work, but also the drafts and unfinished products in case it is necessary to prove yourself as the copyright owner of the work.
- Protect fictional characters and movie titles
In general, fictional characters outside of the stories can be protectable under copyright protection, but the determination varies depending on the circumstances and jurisdiction. It is relatively straight-forward to find copyright protection in fictional character in graphical work rather than in literary work, since the physical appearance and characterization afre visually apparent to the audience in the former. Where applicable, you may also consider registering copyright for your fictional characters.
Names of characters and movie titles do not normally enjoy copyright protection, but they are registrable as trade marks if they are intended to identify and distinguish the source of goods and services. However, a trade mark registration only protects a mark in respect of particular goods and services as registered. You would want to be ready when the opportunity comes and would have an advantage if you plan ahead on any potential expansions. For example, if the movie has the potential of becoming a movie series, you may apply to trade mark the movie title. If the movie titles and names of characters will be used on video games and merchandises, you should consider applying trade marks for the same on the relevant goods. Since it takes time for trade mark applications to proceed to registration in various jurisdictions, having registered rights at the time of negotiating for commercial or merchandising licenses or assignments would give you more bargaining power in the deals.
- Defend your IP rights
Adequate legal enforcement is necessary to protect your IP rights. If you tolerate copycats, sooner or later, the value in your work will depreciate. Detecting copyright infringements can be difficult and costly. There are various tools online that may assist you in conducting searches and will send you alert when contents matching your description is published online if you do not use other paid-service providers.