How to Complete a Producer s E&O Application

Transcription

1 A step by step guide to help you secure protection for your film production By: Winnie Wong, Vice President Producer s Errors & Omissions insurance (E&O) is usually required by distributors prior to the release of any production. It provides legal liability coverage for claims alleging unauthorized use of titles, format, ideas, characters, and plots; plagiarism; unfair competition; liable, slander and defamation of character; or invasion of privacy. The first step to getting the coverage is to complete an application. Momentous Production Insurance expert Winnie Wong goes through each section of a typical application. Name of applicant - In the film world, a single purpose production company is established for a specific film. The purpose of this is to separate any liability that can occur from the individual producers and financiers. In addition, it separates accounting and tax issues that surround a film. When a policy is place the company will then be considered the Named Insured. Please note that the name of the insured protects all individuals that work on the film which includes cast and crew members. Named Insured is the policyholder who establishes an insurance policy and whose interests are protected under the policy. Address/Phone no. - A legal address is necessary so that copies of the policy and any claims documentation can be officially received by an individual that has full knowledge of the films activities. Website Many production companies promote their films on the internet. Please supply your various sites so the insurance underwriter can view the trailers of the film as well as the bios of the director and actors. Limits/Deductibles/Policy term Normally the distributor will require that you indemnify them by including them as an additional insured under your Errors & Omissions policy. In addition, they will designate the limits, deductible and policy terms will vary dependent on the distributor s contract. If you secure distribution through a studio or larger distributors they will require higher limits and designate a licensing periods that can range from 7 to 10 years. These measures are put in place primarily to protect the distributors from lawsuits and legal costs that can exceed millions of dollars. There is a far greater potential of lawsuits arising from theatrical distribution because a larger audience will see the film. In addition, there is a perception that a production company has deep pockets and can afford to pay out large settlements. Limits Unlike other insurance policies, the limits for this coverage are broken down two ways: Limit per claim: The maximum amount the insurance company will pay. Aggregate: The total policy limit that will be paid for the policy term. The standard limits are $1,000,000 per claim and $3,000,000 aggregate Higher limits may be required by various theatrical, television and cable distributors. This is because a distributor s contract usually requires they be included as an additional insured and they want to make sure that ample limits are available to defend them. Self insured retention/deductible Besides the above limits, the coverage is subject to a self insured retention also known as a deductible, which means the producer must pay a portion of the loss if a claim occurs. The standard deductible for

2 films can range from $10,000 to $25,000. Typically, the higher deductible of $25,000 is applicable if the film s budget is larger than $2,000,000, being theatrically released (both domestically and internationally) and if higher limits are required by the distributors. There are occasions when higher deductibles may be warranted because the film has higher potential for legal issues. The deductibles can range from $50,000 to $100,000. Policy term The standard term policy term is one or three years. For feature productions, a three year is the best option because it allows the producer more time to secure alternative distribution thorough cable/television, DVD, internet and foreign markets. To accommodate the distributor s licensing periods which can be 7 to 10 years insurance companies can provide a rights period endorsement or term of insurance to the policy. This means an endorsement can be added to the policy that would protect the distributor for the length of their contract. All that the insurance underwriter will require is a copy of the executed (signed and dated) agreement and an additional premium may be charged. Title The title of the film needs to be provided. In addition, the insurance company will require that you obtain a title report. While a title cannot be copyrighted, there is a possibility that a similar title can cause possible litigation due to the confusion that it may cause in the media marketplace. To avoid possible litigation, the insurance company requires a title search be done by a title search company who will check all media in the U.S. Copyright Office and Library of Congress records to see if there are any similar uses in film, television, music, books, magazines and internet. The report they produce can identify other films with the same title. The report enables the insurance company to know if they can utilize the title. Title opinion If there are similar titles, occasionally the insurance company will require a title opinion letter. This opinion letter is usually provided by an attorney who provides his/her opinion as to whether the title can be utilized. Estimated gross production budget and revenues for the production The insurance company requires film s estimated budget to help determine how a policy will be rated. As you are unable to predict the revenues of the production you are not obligated to respond to this question. Name of the producer/executive producers Providing a listing of the producers is very important because the insurance company wants to verify the experience level of the production executives. The more experience these individuals have the less likely errors from can arise like failing to obtain proper rights or releases. The production destination of distribution Insurance underwriters utilize this information to assist in rating a film. The categories for film are as follows: Film for theatrical release Film for television/cable release Television pilot/special Direct to DVD/video As stated previously, films that are destined to be released theatrically have a potential of being viewed by a larger movie going audience. This means that the more eyes that see a film (domestically and internationally), the higher probability that a lawsuit may arise, so the insurance company will charge

3 more. Of course this means that the premium charged for films that are released for television/cable, DVD and web would be less. Fiction/Non Fiction The main issue here is to determine where the story s inspiration comes from. The questions are broken down as follows: Entirely fictional the script not based on actual facts or circumstances. Fictional, but inspired by specific events and /or occurrences and or characters - a fictional story may contain actual events or individuals in the film. Dramatic portrayal of actual facts which includes fictionalization - In this situation, the story is considered a docudrama which means it is based upon actual individuals, facts or actual events. If this is the case, the insurance company will require a copy of an annotated script. Each notation should refer to factual works such as court records, newspaper stories and books. Please note, for scenes that have sensitive dialogue it is important to have documentation from several sources. I recommend that you consult with an entertainment attorney so that he/she can evaluate your film carefully. Brief description of the storyline (including timeframe and setting) A synopsis of the film is required to gain a better understanding of what the production is about and whether the content of the film is insurable. Please do not be alarmed; entirely fictional films usually have no problems with obtaining a quotation. If your film has elements of fact in the film you should attach a more detailed synopsis. To assist the insurance underwriters further, please include the era and the country that the film is depicting. Your insurance broker will advise if more information is necessary. Clearance Procedures Name and Likeness Is the name or likeness of any living person used in the production? Will necessary rights be obtained? The insurance company wants to know if the production company is featuring actual individuals in the film and wants to make sure that you have obtained their permission. Is the name or likeness of any deceased person used in the production? Will necessary rights be obtained? While depicting a deceased person is less of a concern there are still remaining heirs, family members and personal representatives that need to the grant their permission. Copyright/Chain of title Have copyright reports been obtained? Are there any ambiguities, gaps or problems with the chain of title? A copyright report is a search of the records at the U.S Copyright Office to determine the history of a particular work being used. If you are utilizing underlying works such as a books or documents a check must be made back to the original copyright owners to make sure that another producer didn t acquire rights. This is what the insurance carrier means by any gaps or ambiguity in the copyright chain. Written Warranties Have you obtained from all writers and other content providers written warranties that the content they provide you does not infringe the rights of any third party and have you obtained an indemnity for any breach of this warranty? In a nutshell, an insurance company wants to make sure that the production company s agreement includes a statement that the work provided does not infringe on the rights of any third party. Film Clips/Photographs Have all licenses and consents been obtained from the copyright owner, any person or entity depicted in the film clip and photographs? Although film clips and photographs are not normally included in feature films, the production company will need to obtain permission from the copyright owner and permission from people being depicted in the film clip.

4 Music Have musical rights been obtained from the composer and/or performers, owners of preexisting music and/or recordings? A production company relies on third parties to either provide original music or recordings for their specific film. The production company must make sure they obtain permissions from the composer, music publisher and record company. Once the production company decides which way to go creatively, they need to obtain music cue sheets or establish a contract that will vouch for the originality of the music. Please note that at the time of completing your application, the insurance company is aware there will instances when you do not have the music issues finalized. In this case, the underwriter can exclude coverage for music until you confirm in a letter that all music rights have been secured. A number of clients have released sound tracks to promote their independent film and provide another avenue to earn revenue. If this is the case, you should notify your insurance broker and get this included under the existing E & O policy. A supplemental application may be required and an additional premium may be charged. Risk Management - Attorney Name of your attorney (individual s name, address, phone no.) A discount may apply if you utilize an experienced entertainment attorney. To the insurance company, it means you utilized an extra pair of eyes to manage the clearance process (i.e. obtaining necessary licenses and permissions). Have you and your attorney read and agreed to exercise due diligence to insure that the clearance procedures attached are followed? The insurance company provides clearance procedures for the production company to follow. Simply said, obtaining insurance requires a partnership between the insurance company and filmmaker. The insurance company expects the production company to operate as professionals and exercise due diligence in the filmmaking process. Due diligence is the act of performing a reasonable investigation into the facts and circumstances and perform actions to avoid harm to other persons. Claims notification Have you suffered any loss or has any claim, whether successful or not, ever been made against you that would be covered by this insurance? If yes, please attach details including the date of each claim or loss, the amount of the claim and any remedial action taken. A claim is a formal request asking for a payment. This is not normally a difficult question to answer as many times an independent film does not encounter litigious issues until the film is officially released. However, there are instances where lawsuits or disputes have occurred prior to securing Errors & Omissions. The insurance company wants full disclosure of any claims and action that and the steps taken to remedy the issues. For example, a public figure decides to file an injunction to prevent the producers from filming. However, upon further discussions with the production company s attorney the public figure ends up providing his life rights and contributing to the film. The production company should resolve or settle all disputes by reaching a contractual agreement and pay an agreed amount or revise the film. In the end, the insurance company may decide to exclude any pre-existing claims. Please note that if you purposely conceal claims information from the insurance company, and it is revealed that you had knowledge prior to the placement of coverage, the insurance company can void the policy.

5 Are you aware of any problem which is likely to lead to you suffering a loss or a claim being made against you that would be covered by this insurance? If yes, please attach details of each problem. This question requires you list instances that could possibly result in a lawsuit or a claim. For example, a client secured a signed deal memo/release from a public figure that was to be featured in a segment of the film. However, weeks later, the individual changed his mind and demanded that they remove his image from the film as he felt the film s storyline was not something he wanted to be affiliated with. Ultimately, to avoid a possible lawsuit the production company agreed to remove his image. The most common allegations that can occur when dealing with films based on fiction is theft of idea. This is when a third parties allege that the film or section of film was based on a something they had written (i.e. screenplay or book.) Declaration This section has a number of warranties that the insurance company wants you to be aware of before you sign the application. For the most part the statements are primarily confirming that everything that appears on the application is true, accurate and no statements are intentionally misleading. As I stated before, the insurance company is entitled to rescind their policy if statements made on the application are found to be inaccurate. Disclaimer: The above response is a general overview which is provided for discussion purposes only and is not in any way meant as providing recommendations or legal counsel. It is not intended to apply to each circumstance. Because the facts and circumstances of every matter differ and the terms, conditions, exclusions and limitations contained in insurance policies vary, you should review your policy carefully and seek any legal counsel that may be necessary or appropriate. Momentous is not responsible for any losses or damage resulting from reliance on the information contained herein. If you would like to further discuss the issues raised here, you may contact Winnie Wong by phone or wwong@mmibi.com.