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  Errors & Omissions Insurance
 
  Summary of Coverages
   
 

This cover indemnifies the Production Company in respect of any sums which they shall become legally obligated to pay as damages resulting from claims made during the currency of the policy, arising out of:

 

 

     
  1. Invasion or infringement or interference with the right of privacy or publicity, whether under Common Law or Statutory Law.

  2. Infringement of copyright or trademark, whether under Common Law or other forms of defamation.

  3. Libel, Slander or other forms of defamation.

  4. Plagiarism, piracy or unfair competition resulting from alleged unauthorised use of titles, formats, ideas, characters, plots, performances of artists or performers, or other materials.

  5. Breach of Contract, implied in fact or in law, resulting from the alleged submission, acquisition or use of programme, musical or literary material, used by the Insured in the Production.

    Insurers also agree to pay all costs and expenses incurred by Insurers in defending, settling or investigating any claim up to and within the limit of indemnity.

Cover is subject to the completion of an application form and its acceptance and adherence to the Clearance Procedures detailed below.

 

 

     

Clearance Procedures

   

Preamble

The Clearance Procedures below should not be construed as exhaustive and they do not cover all situations that may arise on any particular production.

  1. Applicant and its lawyer should continually monitor the production at all stages, from inception through to final cut, with a view to eliminating material which cold give rise to a claim.

  2. The script should be read prior to commencement of the production, to eliminate matter that is defamatory, invades privacy or is otherwise potentially actionable.

  3. Unless work is an unpublished original, not based on any other work, a Copyright Report must be obtained. Both domestic and foreign copyrights and renewal rights should be checked. If a completed film is being acquired, a similar review should be made on copyright and renewals on any copyright underlying property.

  4. If the script is an unpublished original, the origins of the work should be ascertained i.e. basic idea, sequence of events and characters. It should also be ascertained whether submission of any similar properties have been received by the Applicant and, if so, the circumstances as to why the submitting party may not claim theft or infringement, should be described in detail.

  5. Prior to final title selection, a Title Report should be obtained.

  6. Regardless of whether the production is fictional (and location is identifiable) or factual, the Insured should ensure that no names, faces or likenesses of any recognisable living persons are used, unless written releases have been obtained. Release is unnecessary if any individual is part of a crowd scene or shown in a fleeting background. Telephone books or other sources should be checked, when appropriate. Releases can only be dispensed with if the Applicants provides the Company with specific reasons, in writing, as to why such releases are unnecessary, and such reasons being accepted by the Company. The term 'living persons' includes thinly-disguised versions of living persons or living persons who are readily identifiable because of identity or other characters or because of the factual, historical or geographic setting.

  7. All releases must permit the Applicant the right to edit, modify, add to and/or delete material juxtapose any part of the production, change the sequence of events or events, including the release, and to make any other changes in the production that the Applicant deems appropriate. If a minor, consent has to be legally binding.

  8. If music is used in the production, the Applicant must obtain all necessary synchronisation and performance licenses from composers or copyright proprietors. Licenses must also be obtained on pre-recorded music.

  9. Written agreements must exist between the Applicant and all creators, authors, writers, performers and any other persons providing material - including quotations from copyrighted works - or on-screen services.

  10. If distinctive locations, buildings, businesses, personal property or products are filmed, written releases should be secured. This is not necessary if non-distinctive background use is made of real property.

  11. If the production involves actual events, it should be ascertained that the author's sources are independent and primary contemporaneous newspaper reports, court transcripts, interview with witness, etc) and not secondary (another author's copyrighted work, autobiographies, copyrighted magazine articles, etc).

  12. Shooting Script and rough cuts should be checked, if possible to ensure compliance of all the above. During photography persons might be photographed on location, dialogue added or other matter included which was not originally contemplated.

  13. If the intent is to use the production on videotapes, video cassettes, video discs or other such technology, rights to manufacture, distribute and release the production should be obtained, including the above rights, from all writers, directors, actors, musicians, composers and others necessary, including proprietors of underlying materials.

  14. Film clips are potentially 'dangerous' unless licenses and authorisation for the second use are obtained from the owner of the clip(s) or party authorised to license the same, as well as licenses from all persons rendering services in or supplying material contained in the film (clip(s) etc, underlying literary rights, performances of actors or musicians. Special attention should be paid to music rights, as publishers are taking the position that new synchronisation and performance licenses are required.

  15. Aside from living persons, even dead persons - through their personal representatives or heirs - have a 'right of publicity', especially where there is considerable fictionalisation. Clearances should be obtained where necessary. Where the work if fictional, in whole or in part, the names of all characters must be fictional. If, for some special reason, particular names need not be fictional, full details must be provided to the Company in an attachment to the Application.

  16. Consideration should be given to the likelihood of any claim or litigation, e.g.
  • Is there a potential claimant portrayed in the Production who has sued before or is likely to sue again?
  • Is there a close copyright of the Production such as to require difficult and extensive discovery in the event of necessity to defend?
  • Is the subject matter to the Production such as to require difficult and extensive discovery in the event of necessity to defend?
  • Are sources reliable?

    The above factors should be considered in your clearance procedures and recommendations.