Video, Film and Television Producers Liability Insurance

Transcription

1 From small productions to Hollywood blockbusters, substantial liability claims can arise for video, film and television producers. Even where you have ensured that all necessary clearances have been obtained you never know what will happen. Hiscox Video, Film and Television Producers Liability policy provides you with the peace of mind you need.

2 Policy overview Advantages Biggest growth in film from over the top streaming services projected to grow 27% annually 1 Occurrence form Open perils form Worldwide coverage Coverage for content in any form including but not limited to, podcast, blog or mobile phone messages Coverage for merchandising activity Additional insured coverage for broad range of entities/ persons Coverage forthe advertising of the insured's production. Benefits 25 years experience underwriting Media Liability worldwide Underwriting bench strength lead underwriters with 20+ years Bold and creative underwriting solutions to meet even the most complex needs Admitted policy form; Hiscox Insurance Company Inc. is rated A (Excellent) by A.M. Best.2 Who we cover Film producers Television producers Video producers Distributors. Types of coverage Policies for an individual production Coverage for your library Coverage for aquisition and development of projects Blanket policies for all of your productions produced in the policy year.

3 Comparative checklist Use the checklist below to spot any gaps in your clients' coverage. Coverage Current? Hiscox Open perils protection (not just specific named torts) including, but not limited to traditional libel, slander, invasion of privacy, breach of confidentiality, copyright, trademark perils and also defamation, injurious falsehood, trespass and publicity rights violations. Occurrence form coverage all film and program production activities which occur during the policy period, regardless of when a claim is made, with built in prior acts language. Claims brought anywhere in the world. Plagiarism, piracy or breach of an implied contract to use a third-party s creative idea. Breaches of the scope of a license your insured has acquired to use a third-party s material. Misappropriation of content, formats, characters, trade names, character names, titles, plots, musical compositions, voices, slogans, graphic material or artwork. Negligence arising out of content. Coverage for core merchandising activities. Costs of prosecuting your insured s own declaratory relief actions in the face of an infringement claim. Content in any form whether it is on the internet, a podcast or mobile phone message. Broad definition of film and program production activities ranging from preparation to exhibition of content. Coverage for our insured s website content, including blogs, and also unauthorized access to this content resulting in a claim for defamation, IP infringement, breach of privacy, outrage, infliction of emotional distress.

4 Comparative checklist Coverage Current? Hiscox Coverage for the title of the insured production (upon our review of satisfactory 'title search and report'). Coverage for insured's failure to give credit or attribution of authorship. Broad definition of additional insured, including but not limited to distributors, bond companies, exhibitors or licensees. Coverage for your insured's advertising of their insured production. Carve back for fraudulent or dishonest conduct where it has not yet been established by a final adjudication. Affirmative coverage for punitive and exemplary damages (where insurable by law). Duty to defend coverage. Prevent the insurer from forcing your insured to accept a settlement. Enable your insured to: settle within the retention extend coverage to third parties including but not limited to directors, writers, freelancers, correspondents, stringers, photographers, volunteers and leased employees, commissioned or engaged to provide media content extend coverage for liability assumed under agreement where claims arise out of your insured s content extend coverage to past, present or future directors, officers, trustees, partners in, or employees

5 Claims scenarios Complex claims requires a clear strategy and an insurer on your side. Hiscox specializes in Insurance for the media industry and our dedicated claims team specializes in the exposures that are unique to the media industry. We pride ourselves on handling sensitive indemnity issues with professionalism and tact.

6 Copyright Infringement Loss scenario What went wrong? The author of a screenplay entitled "High Wires" contacts numerous individuals in the film industry in an effort to find a producer who will make the script into a movie. She attempts to reach a wellknown filmmaker by phoning various companies that she presumes, mistakenly, are owned by the filmmaker. After speaking with someone at one of the companies, she sends a copy of her screenplay to the company, with a request that the script be sent to the filmmaker. No one ever forwards the screenplay. Several months later, the filmmaker releases a film called "Passion Fruit," and the screenplay author, perceiving similarities to her script, sues the filmmaker, as well as the distributors of the film, for copyright infringement. The outcome After the filmmakers' initial motion to dismiss is denied, the parties engage in six months of contentious discovery accompanied by extensive motions practice. The case proceeds to jury trial following denial of the defendants' motion for summary judgment. At the close of the plaintiff's case, however, the court directs a verdict in the filmmakers' favor. The plaintiff appeals, but the order granting judgment as a matter of law is affirmed,. Defense cost payment $750,000 Indemnity payment $0 Total loss $750,000

7 Theft of idea Loss scenario What went wrong? An accomplished television producer becomes acquainted with a former prosecutor turned aspiring Hollywood writer, who pitches to the producer an idea for shooting a film or TV show about the Mafia in his home state. Intrigued, the producer visits the state, where the former prosecutor arranges meetings with several police detectives who share with the producer stories about their experiences with organized crime and its participants. The producer subsequently drafts a screenplay for a cable TV series that would focus on the personal lives of mobsters. When the draft is complete, he sends a copy to the former prosecutor. Over the course of two years, the two have several discussions about the script and the project. Eventually, the producer succeeds in getting the show on the air, and it quickly becomes a major hit. The outcome Claiming that the producer promised to compensate him for his creative contributions and did not, the ex-prosecutor sues for breach of contract and unjust enrichment. Following ten months of discovery, the defendants move for summary judgment, asserting that the contract is unenforceable for vagueness, uncertainty, and lack of essential terms and that the statute of limitations bars the unjust enrichment claim. The trial court grants the motion in full. The plaintiff takes an appeal, and the judgment is reversed in part, based on a genuine issue of material fact as to the time when the plaintiff last performed services that assisted the producer. On remand, the parties file cross-motions for summary judgment. The trial court grants the defendants' motion. The court of appeals again reverses and directs the trial court to enter partial summary judgment for the plaintiff on the statute of limitations issue. The case returns to the trial court, where the parties subsequently reach a settlement of the claim for $750,000. Defense cost payment $685,000 Indemnity payment $750,000 Total loss $1,435,000

8 Misappropriation of name/likeness Loss scenario What went wrong? An Air Force fighter pilot is shot down during combat and evades capture for six days in hostile territory until he is rescued. The story of his experience receives national publicity. He co-authors two books on the subject, one of which is a best-seller, and he becomes a successful motivational speaker. He gives extended interviews about his experiences to a television production company, which uses the information to create a TV docu-drama. Several years later, a film production company releases a motion picture that is inspired by and loosely based on the events of the pilot's experiences, as reported in the news. The film bears only a slight resemblance to the actual facts of the pilot's story. The producers, however, decide to promote the film by advertising during a special re-broadcast of the docu-drama. The outcome The pilot sues the movie producers, claiming that they misappropriated his name and likeness for commercial advantage through their promotional efforts. The parties engage in eight months of discovery, including substantial expert discovery. The producers then move for summary judgment. The motion is denied, and the parties proceed with pretrial preparations, including motions practice and jury selection. Before the trial commences, the parties settle the claim for $1 million. Defense cost payment $925,000 Indemnity payment $1,000,000 Total loss $1,925,000

9 Video, Film and Television Producers Insurance Public disclosure of private facts Loss scenario What went wrong? A television production company produces a documentary program about the murder of an automobile salesman by a hired hitman. Included within the documentary is a discussion of the role of a man who had been charged as a co-conspirator in the murder-for-hire scheme and pleaded guilty to being an accessory after the fact. The outcome After the documentary airs, the accessory (who is no longer in prison) sues the production company for invasion of privacy based on the public disclosure of private facts. The company files a special motion to strike the complaint, but the trial court denies the motion, finding that the plaintiff has shown a likelihood of prevailing on the merits of his privacy claim. The company takes an immediate appeal, as permitted by state law, and the appellate court reverses. The court of appeals holds that the disclosure of truthful information contained in public records of a judicial proceeding could not give rise to an invasion of privacy claim. The plaintiff petitions the state supreme court for review, which is granted. The supreme court affirms the ruling of the court of appeals and directs that the complaint be stricken. Defense cost payment $175,000 Indemnity payment $0 Total loss $175,000

10 Hiscox is a leading specialist insurer with roots dating back to For more than 40 years, Hiscox has provided insurance to US businesses through Lloyd s of London, and since 2006, we have expanded our local presence in the US. Our diverse portfolio includes media and entertainment, executive risks, financial services, professional liability, and property and specialty products like Terrorism and Kidnap and Ransom. Our underwriting and claims teams provide flexible solutions designed to meet your clients evolving needs. Contact Information Insurance brokers are welcome to contact us. Two ways to find your regional contact: hiscoxbroker.com/contact-us Northeast Northwest Southeast Southwest Midwest About Hiscox in the US Underwritten by Hiscox Insurance Company Inc., a Chicago-based insurer, which is admitted or licensed to do business in all 50 states and the District of Columbia. Coverages are subject to underwriting and the terms, limits, and conditions of an issued policy, and may not be available in all states. In the event the actual policy forms are inconsistent with any information provided herein, the language of the policy forms shall govern. Inquiries as to insurance or other products or services should be directed to an insurance agent or broker licensed to conduct business in the relevant US state. Insurance agents or brokers should contact a Hiscox underwriter. 1 Price Waterhouse Cooper 2013 Entertainment Report 2 A.M. Best rating date as of October 23, /15