Are you a filmmaker working hard on your first dream project? You must be wishing your project getting commissioned by platforms like Netflix and Amazon Prime. You have ensured the best script, locked your director and actors, finalized the shooting destination, etc. Are you missing something? Have you initiated the process to get Error & Omission (E&O) Insurance? I can understand if you may not have given it a thought. Perhaps, you do not know its significance, and due to this unawareness, you might be exposing yourself to substantial but avoidable risk. In addition, E&O Insurance may be a mandatory requirement to sell your work to prime OTT platforms. So, there is no harm in investing your few minutes in reading and understanding this article. Plus, I have a surprise for you revealed at the end of this article!
Imagine this scenario; you have just announced the plot of your film and received a legal notice from a book author. The author claims that your movie is based on his published novel, and you have infringed his copyright. You received another legal notice from a TV serial producer who claims that you have stolen the title of his serial telecasted ten years back. He is coming up with the next season of that serial soon. He warns you to change your title as he has already trademarked this title. Now, you release the trailer of the film, and then you receive a legal notice from an artist whose painting is in the background of your trailer without his permission. Such lists of claims can go on and on. I know it can be a nightmare for a filmmaker, especially if you have a limited budget. Apart from dealing with such claims, it shall be difficult to sell your work to OTT platforms due to these unresolved claims.
I do not want to scare you, but this is a fact. Let me give you a real-life example. Recently, Karnataka High Court banned the streaming of the first episode (A murdered Mother) Netflix Show Crime Stories: India Detective at the petition of Sridhar Rao. Mr. Rao argued that the documentary contains the visuals of custodial interviews of the petitioner by the police. The documentary can interfere with his fair trial and breaches his privacy. This case is just an example, and I do not know if the episode makers have taken E&O insurance. However, E&O insurance can play a crucial role in such a case in defending your claims and making good of the loss incurred by you (based on the terms of your policy). E&O Insurance covers claims against a production, including breach of copyright or trademark, breach of privacy, defamation, breach of implied contract, unfair competition, etc. This list is for general understanding. Your lawyer should read and understand the insurance document to understand the coverage in your specific policy. It is advisable to get legal advice if you have a hard time deciding which policy suits you the best. It is an open secret that litigations come with a hefty legal cost and a deal-breaker from your potential client. The chance of raising claims against your film increases multifold if you make a documentary, investigative films based on real-life incidents, controversial subjects, etc.
Now, what are the main conditions precedent to get E&O Insurance? First and foremost, you need to submit your film clearance reports to your insurer. The first wise step is to consult a media and entertainment lawyer who can explain the terms of the policy and prepare all the clearances reports that you require to be submitted along with your application. So, let us understand in brief that what are the kinds of reports/clearances your lawyer needs to prepare;
a) Chain of title clearances: You need to ensure that each contributor of your film (including but not limited to screenwriter, director, musician, actor, singer, art director, makeup person, costume designer, etc.) have signed the requisite contract/release with you. Please note your release letter cannot be a random format downloaded from a search engine, but it should be a document drafted/reviewed by your media & entertainment lawyer considering your specific requirements related to the rights & release.
b) Script clearance report: Your lawyer needs to legal review your script and prepares this report. She needs to ensure that you have taken requisite permission from all copyright owners for including any other copyrighted work in the script, including any music, painting, clips, a portion of a poem/novel, photographs, name, etc.
c) Title search Report: Your lawyer needs to verify that the title of your film does not overlap with other films releasing in the same timeline. It should be the same for any existing film. Further, it should not violate the trademark of any other person/entity.
d) Film review report: Once your film is ready to release, your lawyer needs to review and give you a clearance report that your film does not use any unauthorized/objectionable visuals, sounds, scenes, etc.
e) Fair use report: Your lawyer needs to prepare a fair use report that if you have incorporated certain copyrighted elements with permission, that use should fall in the domain of fair use.
f) Any other report as required by your insurer
The insurer shall allow your E&O Insurance application and cap the insurance amount based on the above clearance report. It has three significant benefits;
i) Thorough due diligence shall mitigate the prospective risk of legal claims against your film.
ii) It increases the probability of a big platform to buy your movie.
iii) The insurance shall act as a safety net in the case of any legal claims/litigations.
Now, it is time for the surprise! If you have a film in hand and want to explore E&O Insurance, I am offering one (1) free legal consultation to the top five (5) readers of this article in the following steps;
i) Please email me at email@example.com, giving brief details about the film for which you want the consultation.
ii) I shall give the first five email-sender a slot for our e-meeting. In the consultation, I shall try to address your doubts about the process of E&O insurance & clearance reports to the best of my capacity.
Before writing this article, we polled our social media handles regarding how many people know E&O Insurance. The result is that only 21% of people are aware, and a large chunk of 79% are unaware. So, do not hesitate to share this article with your circle. Let's spread awareness, knowledge and light.
Picture Credit: Crime Stories: India Detective, Netflix