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How to Complete a Producer’s E&O Application (2 of 3)

Published: March 13, 2017

A step by step guide to help you secure protection for your film production

By Winnie Wong

Producer’s Errors & Omissions insurance (E&O) is usually required by distributors prior to the release of any production. It provides legal liability coverage for claims alleging unauthorized use of titles, format, ideas, characters, and plots; plagiarism; unfair competition; liable, slander and defamation of character; or invasion of privacy. The first step to getting the coverage is to complete an application. In our 3-part blog series, Momentous Production Insurance expert Winnie Wong goes through each section of a typical application.

Continued from Part 1

Title    
The title of the film needs to be provided.  In addition, the insurance company will require that you obtain a title report.  While a title cannot be copyrighted, there is a possibility that a similar title can cause possible litigation due to the confusion that it may cause in the media marketplace.  To avoid possible litigation, the insurance company requires a title search be done by a title search company who will check all media in the U.S. Copyright Office and Library of Congress records to see if there are any similar uses in film, television, music, books, magazines and internet.  The report they produce can identify other films with the same title.  The report enables the insurance company to know if the title is clear for use.

Title opinion            
If there are similar titles, occasionally the insurance company will require a title opinion letter.  This opinion letter is usually provided by an attorney who provides his/her opinion as to whether the title can be utilized.

Estimated gross production budget and revenues for the production
The insurance company requires film’s estimated budget to help determine how a policy will be rated. As you are unable to predict the revenues of the production you are not obligated to respond to this question.

Name of the producer/executive producers
Providing a listing of the producers is very important because the insurance company wants to verify the experience level of the production executives. The more experience these individuals have, the less likely errors can arise like failing to obtain proper rights or releases.

The production destination of distribution
Insurance underwriters utilize this information to assist in rating a film.  The categories for film are as follows:

  • Film for theatrical release
  • Film for television/cable release
  • Television pilot/special
  • Direct to DVD/video

As stated previously, films that are destined to be released theatrically have a potential of being viewed by a larger movie going audience.  This means that the more “eyes” that see a film (domestically and internationally), the higher probability that a lawsuit may arise, so the insurance company will charge more.   Of course this means that the premium charged for films that are released for television/cable, DVD and web would be less.

Fiction/Non Fiction
The main issue here is to determine where the story’s inspiration comes from. The questions are broken down as follows:

  • Entirely fictional – the script not based on actual facts or circumstances.
  • Fictional, but inspired by specific events and /or occurrences and or characters –  a fictional story may contain actual events or individuals in the film.
  • Dramatic portrayal of actual facts which includes fictionalization – In this situation, the story is considered a “docudrama” which means it is based upon actual individuals, facts or actual events.  If this is the case, the insurance company will require a copy of an annotated script.  Each notation should refer to factual works such as court records, newspaper stories and books.  Please note, for scenes that have sensitive dialogue it is important to have documentation from several sources. I recommend that you consult with an entertainment attorney so that he/she can evaluate your film carefully.

Brief description of the storyline (including timeframe and setting)
A synopsis of the film is required to gain a better understanding of what the production is about and whether the content of the film is insurable.  Please do not be alarmed; entirely fictional films usually have no problems with obtaining a quotation.  If your film has elements of fact in the film you should attach a more detailed synopsis. To assist the insurance underwriters further, please include the era and the country that the film is depicting. Your insurance broker will advise if more information is necessary.

Continue to Part 3

Disclaimer: The above response is a general overview of E&O Insurance which is provided for discussion purposes only and is not in any way meant as providing recommendations or legal counsel. It is not intended to apply to each circumstance. Because the facts and circumstances of every matter differ and the terms, conditions, exclusions and limitations contained in insurance policies vary, you should review your policy carefully and seek any legal counsel that may be necessary or appropriate. If you would like to further discuss the issues raised here, you may contact Winnie Wong by phone 818-933-2735 or email wwong@mmibi.com.