© Sean Benesh on Unsplash
Before being a creative act, the production of a feature film raises the question of risk-taking. The filming locations, the personnel hired and the goods and equipment used are all elements that need to be covered by specific insurance, linked to the film and audiovisual production business.
However, the risks are not limited to damage caused by third parties or bad weather. The producer also needs to be protected against any legal action brought by third parties when the film is broadcast.
**Why take out E&O insurance?
This risk of litigation can also be covered by “Errors and Omissions” (E&O) insurance, which protects the production against any claims arising from errors, omissions, defamation, invasion of privacy or counterfeiting.
This type of insurance is often recommended in order to conclude agreements with distributors and broadcasters.
The essential steps for taking out E&O insurance** **The process is not as straightforward, however.
The process is not as straightforward as it might seem, however, because E&O insurance can only be taken out if all copyright, neighbouring rights, image rights and trademarks have been cleared.
These authorisation procedures can sometimes take a very long time, and must begin even before the film is shot. The advantage of anticipating this type of request is that you can take action during filming if a rights holder refuses or fails to respond.
To carry out this work successfully, it is also advisable to call on the services of a specialist company that is already familiar with the workings of copyright law and knows how to approach rights holders.
1 – First stage: script analysis
This work, which can extend over several months, begins with a “screening” of the script. The first thing to do is to identify all the elements that are protected by intellectual property rights or image rights.
A film often contains pre-existing music, for example, which must be the subject of a specific request to the music publisher and label. Other more subtle elements can also slip into a script, such as a poster in a child’s bedroom, an extract from a TV programme in a TV screen, or a brand name in a set piece.
2 – Second stage: risk assessment and decision-making
The next logical step after the clearance stage is risk assessment. Clearance work can sometimes be very long and complex, and not all authorisation requests are necessarily necessary (see the article on this subject: [[principal-or-accessory-clearer-a-work]]).
This risk assessment should be discussed with a specialist law firm.
3 – Third stage: Obtaining authorisations and entering into contracts].
Once the choice of items to be cleared has been decided by production, the process of applying for authorisations can begin.
The process differs depending on the purpose of the application. For music, the music publisher and/or label should be contacted, even if the use is furtive. For the image of a celebrity, the representative should be contacted. For a photograph, you will need to contact the author or his/her beneficiaries.
Each request for authorisation has its own process, which necessarily involves researching and identifying the beneficiaries and their contact details.
These steps can be quick, or they can take a very long time. They generally result in an agreement, but can sometimes lead to a refusal, or even no response at all.
When the response is positive, a written agreement is required to keep a written record of the agreements reached. In some cases, a contract may also be concluded. In this case, it will be necessary to check that the conditions proposed in the contract correspond to the intended use.
Once this process has been completed, E&O insurance can be taken out. Long and complex though they may be, these steps are essential to ensure the safety of your project.
Don’t hesitate to contact the Chaînon Manquant team, who will be delighted to advise you on the subject.