Film Errors and Omissions insurance, also known as ‘Film E&O insurance’, ‘filmmakers insurance’ or ‘media E&O insurance’, exists to protect producers against the many risks arising from the development, production and distribution of their film or television show.
E&O insurance is often a prerequisite for any distribution deal with a studio, so even if you are an independent filmmaker – especially if you are an independent filmmaker – this insurance is nothing short of vital.
What does film E&O insurance cover?
Film errors and omissions insurance gives you a measure of financial protection against a wide array of claims and issues that might plague a film’s distribution or reputation. It cannot protect against criminal charges or deliberate wrongdoing of any kind, but our seasoned team at La Playa know from experience that simple accidents (or even coincidences) can happen.
E&O predominantly covers claims of copyright infringement, for example where a person or entity may feel that a film or show has made use of their intellectual property without permission. This can include background music, a similar plot, similar characters, broadcasting cable or satellite rights and more; if someone feels as though they are not compensated for contributions to your project, it could be a legal nightmare waiting to happen.
Many filmmakers use copyrighted material under the doctrine of Fair Use. This material can be covered under the policy as long as your attorney has reviewed the material in the film, has created a fair use log, and writes an opinion letter that the filmmaker has followed the legal requirements to rely upon the fair use protections. This letter would be submitted with your application for underwriters consideration.
E&O insurance can also cover instances of defamation, libel or slander, as well as breach of confidence or privacy rights and plagiarism. An experienced insurance adviser can make sure that you are well protected at the right premium.
Does my production need E&O insurance?
If you plan to distribute your production, you would definitely benefit from errors and omissions insurance. When distributed globally, films and shows of all scales are exposed to a wide range of risks of legal action.
An example of this is Lockout, a 2012 action film featuring a man posing as a prisoner to sneak into a futuristic prison to rescue an influential figure from the inmates who have taken over. This resulted in a copyright claim by John Carpenter – director of Escape from New York, which has a near-identical premise. Carpenter was awarded €450,000 in damages for this.
Other recent films that have been mired in lawsuits include:
– Captain Phillips (allegedly misrepresented the ship’s crew)
– In Time (allegedly plagiarised from a Harlan Ellison story)
– The Hangover Part II (allegedly plagiarised a tattoo design)
– Avatar (allegedly plagiarised the design for Pandora)
– The Shape of Water (allegedly plagiarised from a play)
– BBC’s Sherlock (allegedly used characters owned by Andrea Plunket)
These lawsuits all had different outcomes and some were quickly dropped, but indie productions may struggle to pay the kinds of damages that could be awarded by a court.
When is the best time to buy film insurance?
We would always suggest that you buy your film E&O insurance early, potentially even at the first planning stages. It is common for producers to wait until the final product is delivered to a distributor or broadcaster to buy film E&O insurance, but a suit could develop before this stage. This would leave the producer liable for any costs, so you would do well to be protected at all stages of the film production.
How do deductibles work with film insurance?
If you are not familiar, insurance usually involves a deductible or excess – this is an amount that the policy-holder (the person taking out the insurance) pays before a provider can pay expenses. E&O insurance works much the same way, and it is worth noting that it can be higher than other commercial policies.
The premium will depend on the deductible, so it is best to negotiate with your broker to ensure that you are getting the best protection at the fairest price.
What does the application form entail?
Your application form will lay out the clearance procedures and other requirements of your coverage. Any information you provide must be complete and accurate, with no misleading
Film E&O insurance is essential for any distribution contract – if you aren’t protected, the outcome could be financially crippling. For more information, get in touch with our team of experts for advice on how to get the best legal protection for film production.