Sunday, August 14, 2016

Seeks Permission For Chinese Translation

Dear Rich, I am an independent permissions editor and have the opportunity to clear rights on behalf of a reputable Chinese scholarly/academic publisher. They plan to translate a U.S. title from English to Chinese. First, they need to clear the rights for protected material in the volume. Is there anything I should consider, that might not occur to me, about the process of clearing rights from the United States for a foreign publisher? Or is there any exposure I might have that I should be aware of?
As a permissions editor, you're probably already aware of most of the important issues but we'll cover some of the basics just in case. Clearing rights for a foreign language publisher involves acquiring at least two separate rights: the right to publish in the territory (China); and the right to publish in the language (Standard Chinese). Defining the territory is especially important as it limits where the translation can be distributed (and may prevent export or sales outside the territory). Also important are issues regarding duration of the permission, approval of the translation, and format(s) of publication (trade, hardcover, eBook). And of course, don't forget to check photo, artwork, and text permissions which may have been negotiated separately.
Your exposure? Your legal liability if any, could conceivably come into play if someone pops up after the translation is published claiming that he or she is the real owner of rights. You might be able to shield yourself in a few ways:
  • you can ask the person granting permission to attach proof of rights ownership (a publishing agreement, etc.) to the permission agreement and incorporate it by reference. 
  • you can also include a warranty and/or indemnity provision in the permission agreement. Warranties are contractual promises. The warranty can be something basic such as "Licensor warrants that it has the right to grant permission for the licensed uses as specified above and that the material licensed does not infringe the rights of any third parties." A licensor who provides indemnity is agreeing to pay for the licensee’s damages for certain situations. Indemnity provisions are also sometimes referred to as “hold harmless” provisions because the provision often states that the person granting permission shall hold the other party harmless from any losses, etc. Many persons granting permission balk at indemnity provisions and you may not have the bargaining power to include one. In addition, the enforcement of warranties and indemnity may be difficult as it involves filing a lawsuit based on the permission contract -- often an expensive proposition when dealing with parties outside the U.S.

Tuesday, August 2, 2016

E&O Insurance Needed for Documentary

Reed Bontecou’s Portraits of Wounded Soldiers (1865)
Dear Rich: I have been working on a historical documentary for about two years now and just started submitting it to film festivals. I have about 50 historical still images in the short film. These images are all from 1860-1900. I have confirmed with film festivals that I should be okay on all rights. However, this piece is now being considered to be televised nationally and I’ve been asked for further confirmation on rights. In addition, I am now being told I need to buy E & O insurance and I’m not sure where to go for that. I created this piece with all of my own time and money. They are not offering me any money to televise it and I’m supposed to pay for the insurance myself. Any thoughts you have on the rights and insurance would be greatly appreciated.
Assuming the photos were published before 1923, (or if unpublished, the photographer died before 1946), the images are in the public domain. In other words, these photographs are free for you to use without permission. However, simply explaining that to a television station is not enough. The company will want you to back that up with insurance, and the insurer may want to consult with an attorney before issuing the policy.
What is E & O insurance and why do you need it? Errors and omissions insurance doesn't just cover claims of copyright infringement. This media liability insurance also protects against claims for right of publicity  and invasion of privacy, trademark infringement, and a few other media-related problems. It is extremely unlikely you will obtain distribution deals or television broadcast without this insurance in place.  According to Michael C. Donaldson's Clearance & Copyright, 4th Edition: Everything You Need to Know for Film and Television, the cost of insurance for a documentary ranges between $3,000 to $10,000 and most policies are issued by three insurers: Axis Pro, Hiscox, and Chubb. We recommend you invest in a copy of Donaldson's book as it explains the nuances of policies, how to apply for E & O insurance and it provides email addresses to write for qualified insurance brokers and clearance attorneys.