What is E&O Insurance?
Errors and Omissions (E&O) Insurance is designed to protect filmmakers from certain third party claims that arise in connection with their film(s). Specifically, producer’s Errors and Omissions Liability Insurance covers against all sums that the Insured may become legally obligated to pay as damages resulting from lawsuits for:
• Invasion or infringements with the right of privacy or publicity;
• Infringement of copyright or trademark;
• Libel, slander or other forms of defamation;
• Plagiarism, piracy, or unfair competition resulting from the alleged use of titles, formats, ideas, characters, plots, performances of artists or performers or other material;
• Breach of contract, implied or in fact or in law, resulting from the alleged submission, acquisition or use of program, musical or literary material used by the Insured in the insured productions; and
• Policy includes coverage for legal expenditures incurred in the defence of any claim.
Filmmakers are also recommended to obtain E&O insurance since they will remain liable for any claims that arise; even if the lawsuit is directed at the distributor first.
E&O Insurance is not the same as general liability insurance. The latter covers matters such as accidents on set or if a stunt goes wrong and an actor gets injured.
What Are Trademarks?
Trademarks are words, logos, symbols, pictures, design or shaping of goods, or a combination of these elements, used to distinguish the goods or services of one person or organization from those of another in the marketplace. Examples of trademarks are the words and logo “Coca-Cola” and the distinctive shape of the Coke bottle.
A production must obtain “clearances” – that is, permission from the trademark owner to film the registered trademarks found on most products. For instance, if a character in your production were wearing a Nike shirt displaying their ubiquitous “swoosh”, then you would need to acquire the rights to visually depict that trademark. As a rule of thumb, releases need to be obtained for all commercially identifiable brand name products. The alternate to this is using generically labelled products, such as a beer or pop labelled “beer” or “pop” or to make up a completely fictitious product name.
A trade mark can be a letter, name, signature, word, numeric device, brand, heading, label, aspect of packaging or shape, and even a scent or sound. It can consist of words alone or images alone or a combination of words and images. Rights to a trademark can last indefinitely if the owner continues to use the mark to identify its goods and services. If trademarks are not used properly, they may be lost and one of the company’s most important assets may lose all of its value. Rights may be lost not only because of a trademark owner’s improper use of the mark, but through improper use of the trademark by the public.
What Is A Copyright?
Copyright is the right to reproduce a literary, dramatic, artistic or musical work. People who create these things have the exclusive right to exploit it, or not to exploit it. Copyright Law gives the creator or registrant alone the right to copy and profit, financially or otherwise, from the creation.
Copyright only exists in works that have been created in some tangible form. Examples include:
literary works: books, pamphlets, poems and other works consisting of text and computer programs;
dramatic works: films, videos, plays, screenplays and scripts;
musical works: compositions that consist of both words and music or music only (note that lyrics without music fall into the literary works category);
artistic works: paintings, drawings, maps, photographs, sculptures and architectural works.
Do Trademarks, Copyrights and Patents protect the same things?
No. Trademarks, copyrights and patents all differ. A copyright protects an original literary, musical, artistic or literary work. A patent protects an original, useful invention. A trademark distinguishes one company or person’s goods or services from that of another.
What About Trademarks Used In Everyday Speech?
Champagne, Parmesan (cheese), Feta (cheese), Scotch (whiskey), Frisbee, Rollerblade, Kleenex, and Aspirin are all names that many people use not to reference the branded product, but rather, to reference the generic class of similar products. While this may be acceptable in everyday speech, these marks are in fact registered and protected and use of them in your film without permission may result in and infringement of Trademark claim.
However, it is also important to note that you may have a brilliant idea for a mystery plot but until the script is actually written, or the motion picture produced, there is no copyright protection. Another way of understanding this is that Copyright is restricted to the expression in a fixed manner of an idea – it does not extend to the idea itself.
What are Permissions?
We often receive calls saying something like, “We need you to get clearances for us for using ‘Coca-Cola’, ‘Air Canada’ … (and other trademarks) … for our film. This is actually not so much a “clearance” issue as it is a “permissions” issue, given that there is no doubt about the protection accorded the trademarks in question.
There are a few ways to handle permissions:
1. Use a product placement company.
2. Designate someone within your crew to handle clearances – now seeing more and more productions with a clearance person.
3. Use a clearance company to handle this for you.
Getting permission involves tracking down the owner and contacting them, and then finally having a release signed stating that you are able to use the Trademark in question on a prop or otherwise filmed in a scene.
Usually the author of the creation is the copyright owner, unless they are creating it as a “work made in the course of employment” in Canada, a “work for hire” in the United States or transfer the rights to someone else.
These creations can be a movie, television show, song, performance, sculpture, architectural design, painting, piece of choreography, photograph, book, speech, computer program, translation, game, instruction manual, play, set for play, toys, home video, or anything else that someone might have creatively originated.
Generally, Canadian copyright law protects a work for 50 years after the author’s death, while in the United States it’s 70 years after the author’s death. After such a time the piece falls into the public domain.
In the United States, some producers try to rely on “Fair Use” doctrines such as parody. However there is no doctrine of “Fair Use” available in Canada and Canadian producers who do not obtain clearances can only rely on the more limited doctrine of “Fair Dealing”, which provides that any “fair dealing” with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author’s, performer’s, sound recording maker’s or broadcaster’s name, if known. There are also some limited educational exceptions in Canada, but these are unlikely to assist for-profit filmmakers.
Some filmmakers believe that use of public domain works is another way to cut the costs of footage. While it is generally true that permission is not needed to reproduce a public domain work, most users forget that various elements within that public domain work (often being the music) may still be legally protected. For example, a film may be in the public domain, but there are actors, directors, writers, stunt people, choreographers, and trademarks within the film that are not in the public domain and require clearing.
Why Is Securing Music Permissions Difficult?
Copyright protection extends to two separate aspects of music: the musical composition, which also may be divisible into two aspects, the music itself and the lyrics; and the embodiment of the music, that is, the sound recording.
The process of locating copyright-holders in a particular piece of music can be very complicated. The first step should naturally be to look at a copy of the work for such details as a copyright notice, when and where the work was published and the identity of the author and publisher. Unfortunately, this is not always the most reliable way to find copyright-holders, because music jackets may not properly identify all of the copyright-holders to a particular work, and it often will not provide an address or other means to contact the record producer.
If more than 50 years have elapsed, the work is said to be “in the public domain”. This means that there is no copyright and, in effect, no one owns it. An arrangement of a public domain work, however, is itself copyrighted for the life of the arranger plus 50 years. The time frames extend to 70 years in the United States.
The owner of a copyright has certain exclusive rights regarding the use of the musical work. This means that he or she is the only person that can make copies of the work or perform it in public, and is the only person that can authorize others to do the same. If a person exercises those rights without the copyright holder’s consent, such use is called an infringement of the copyright, and is subject to civil and criminal proceedings.
We recommend that you consult with an experienced entertainment lawyer who understands music rights and to also seek the services of a professional music supervisor.
What About New Media Uses?
New Media is one of the newest and most complicated areas of copyright. New media defines the whole onslaught of digital technology, things like video games, social networking sites such Facebook, MySpace and YouTube, and the internet generally. Copyright, Trademark, Patent and other intellectual property law is the same for new media uses as it is for film or TV … permission is required unless an exception exists.
New Media uses also gives rise to liabilities concerning defamation and infringements on individuals’ rights of publicity and privacy.