What you need to know about E&OBy: Rose Massary

No matter how experienced a producer, or how carefully the development of a television series, documentary, or feature film is monitored, there are certain inherent legal risks that come with the distribution of creative content.  Whether it’s an individual claiming defamation, a director asserting copyright infringement, or a frivolous declaration of idea theft, unexpected legal claims often arise after distribution.  Because of the tremendous financial impact producers and companies could face to address and defend such claims, they often wonder, “how can I protect myself and my work”?  

What’s E&O?

Errors and Omissions Insurance (or, “E&O Insurance”) is a type of insurance that protects against various intellectual property, personal property and personal rights claims that could be made against a production.  It typically covers claims relating to the content, including:

(i) copyright and trademark infringement,

(ii) idea theft,

(iii) defamation,

(iv) invasion of privacy,

(v) plagiarism or unfair competition, and

(vi) breach of contract.

E&O Insurance can be a valuable resource used to insulate companies and individuals from these claims and the costs to defend them.  In fact, many distributors actually require E&O Insurance before entering into a distribution deal.

How do I get it?

As with most other types of insurance, obtaining E&O generally starts with an application.  The application process usually requires submission of information regarding the production and its owner(s).

Insurers generally require that those applying for coverage show Chain of Title.  Meaning, a “chain” of documentation that establishes ownership: a complete history of all necessary permissions, grants, agreements, assignments and transfers that shows ownership and the corresponding authority to exhibit, distribute and license the production.  The insurance carrier may require submission of:

      • a copyright report;
      • screenplays;
      • property acquisition agreements;
      • relevant releases and licenses;
      • source material;
      • information related to property and products used;
      • work-for-hire agreements;
      • third party material used (such as music, film clips, and trademarks); and
      • proof of legal clearance.

How much is it going to cost?

Premiums typically vary depending on the risks associated with the production and the people or companies involved.  For instance, because of rights of privacy and publicity concerns, a documentary based on true events and ordinary individuals may have a higher cost than an original, narrative feature.  An experienced producer may be able to obtain a more favorable policy than a first-timer.  However, customary Distribution Agreements generally dictate the type of coverage necessary, as well as the policy minimums that must be maintained.

Whether it’s required or not by the distributor, obtaining an E&O Insurance policy for your production may help protect you, your company and your work from unexpected claims and costs.

Contributing Editor: Jessica Cox & Stephanie Westerman

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Rose Massary

Associate Attorney

(212) 865-9848

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