Filmmakers often suffer from a (misleading) reputation for having deep pockets; after all, they all live in Hollywood and live glamorous lives, right? We know this is not always (in fact, most likely not) the case with aspiring and even established filmmakers. We also know that things can often go wrong when you’re dealing with the confusing world of intellectual property. Please read on if you’d like to ensure that even after you’ve done everything necessary to secure your film’s fair use clearance, that you complete the remaining (and lesser known) steps to ensure legal protection of you and your film.
What Is Errors & Omissions Insurance?
Errors & Omissions (E&O) insurance is a must to protect yourself and the film. E&O insurance protects filmmakers from lawsuits pertaining to theft of idea, copyright infringement, libel, slander, invasion of privacy, defamation, product disparagement, trade libel, infliction of emotional distress, right of publicity, outrage and outrageous conduct, false light, wrongful entry, false arrest or malicious prosecution. This legalese and jargon just means any issue that may arise from your film’s content or any allegations made by a person depicted in your film. As an added bonus, E&O insurance covers attorney fees and legal costs of any such claims. On the flip side, it’s important to note that E&O insurance does not cover contract claims; meaning if there is an issue with a director or producer’s contract for their work on the film, then E&O is not the place to go to resolve it.
Better safe than sorry isn’t just an old adage your grandma used to say to make you wait 30 minutes before splashing back into the pool, it actually holds water (see what we did there) with film clearance and distribution too (i.e. E&O)! Getting E&O insurance is imperative to filmmakers, and in this industry, the earlier you are able to get it the better. As a documentary or non-fiction filmmaker, you cannot afford to wait. If a claim arises in the midst of film production or post-production and you don’t have insurance, your film can be stopped in its proverbial tracks. Plus, a claim like this would likely make it almost impossible to acquire E&O insurance.
Title Reports & Opinions
As part of the E&O insurance process, you might be asked to acquire a title report. We’re sure you’re wondering why a title report (something usually associated with buying a home) is needed for a film, but honestly making and clearing a film can be just as, if not more so, involved as buying a home, and coincidentally they both require title reports.
Title reports, for films, make sure that your movie title is clear to use and not associated with something that is already out and popular, which can create some confusion in the market. Essentially the title report makes sure you aren’t titling a film Star Wars for a feature about the stars and planets (unless you want to feel the wrath of Darth Vader).
E&O insurance often requires a title report to avoid this confusion and liability. Now you might be thinking titles aren’t copyrightable, why should it matter then? And of course you are right, titles are not copyrightable, BUT titles can be trademarked; especially if the title becomes so well known and associated with that film (recall Star Wars example above). You don’t want to use that already famous name and irritate George Lucas because you just might never get invited to Skywalker Ranch.
In conjunction with the Title Report, some E&O insurance agents require a Title Opinion. This is a formal letter from an attorney (similar to a trademark report) recommending that your title is clear to be insured.
The title report and opinion give the go-ahead to insurance agents to insure your film and allow your chosen title to be used for your film. As always it’s best to consult with your insurance broker and attorney on what kind of title report and/or title opinion you might need.
Wrapping It Up
After you’ve made the choice of obtaining E&O insurance, don’t be frightened by the application process. It can be a bit overwhelming, which is why we recommend asking for some professional help. If you do proceed without professional help, which is completely doable, be sure you fill EVERYTHING out. Additionally, don’t say you did something when you didn’t, this could lead to problems down the road. It’s important to let the insurance carrier know about any past or present claims that have come about because not disclosing this information could lead them to deny you coverage. If a claim ever does arise (which we hope doesn’t happen), you should immediately contact your insurance carrier.
Dealing with E&O insurance can be a daunting task, which is why we recommend getting some help to give you the best chance of obtaining coverage. Be that legal help or a broker who deals with this situation on a regular basis, it’s imperative you deal with someone in the know! We are always here to help, as well.
Edited by: Stephanie Trejos – 09/18/17
- Film Clearance 101 – Getting to Picture Lock
- Life Rights and Why You Need Them
- An Overview of Fair Use
Disclaimer: Although this article may be considered advertising under applicable law and ethical rules, the information in this article is presented for informational purposes only. Nothing should be taken as legal advice. Reading this article does not form an attorney-client relationship with us. An attorney-client relationship is formed through a signed engagement agreement. If you would like further information, wilkmazz pc would love to help you out! Feel free to reach out with any questions.
Photo Credit: Jackie Wonders