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Assuming the photos were published before 1923, (or if unpublished, the photographer died before 1946), the images are in the public domain.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.