Why is Film and TV Errors & Omissions (E&O) Insurance important

By Gareth Graham ACCOUNT EXECUTIVE

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Over time culture has changed and we are now seeing more claims arising on feature length films, short films, and television projects. This includes the more the recent claim against the Netflix Hit Series “Baby Reindeer”.

Baby Reindeer: Woman sues Netflix for $170m over Martha character – BBC News

There has been a number of high-profile cases that provide a good example of when E&O Insurance would respond that you may recognise:

Nona Gaprindashvili claiming defamation as she believes she was wrongly portrayed in the Queens Gambit Chess icon sues Netflix for Queen’s Gambit portrayal – BBC News
A privacy breech claim against Channel 5’s “Can’t Pay We’ll take it Away” Channel 5 agrees second payout in a year over ‘Can’t Pay? We’ll Take it Away!’ (pressgazette.co.uk)
A dismissed case for fair use from a photographer on the Billie Eilish Documentary Federal Court Holds that Incidental Capture of Photos in Background of Documentary Film is Fair Use – Media Law Resource Center

Some other examples of cases that we have seen result in claims are also where:

A writer allegedly copied a producer’s storyline and was later sued for copyright infringement and misappropriation.
A well-known celebrity believed they were defamed in a feature film which portrayed them in a negative light.
A foreign company alleged a local production company misappropriated their name for use in a local television series. The company was sued for title infringement.
A well-known artist and photographer alleged that content from one of their photographs was used by a movie studio without their consent. They ultimately sued the movie studio for copyright infringement and misappropriation.
A producer’s film was based on a bestselling book. The man whose life was the subject of the book, sued the film producer, alleging that the movie would repeat the defamatory information published in the book, would place him in the same false light, and would disclose private facts about him.

We tend to get E&O enquiries due to sales agents, distributors or financiers requesting the cover under their various contracts but as soon as your content is aired via whatever platform the risk becomes live.

WHAT IS COVERED BY FILM & TV ERRORS & OMISSIONS INSURANCE?

Errors and Omissions Insurance can cover you for any defence costs that may occur and insures you against damages because of a claim arising. For example, if a production company uses any copyrighted material without permission, E&O insurance can cover the cost of any legal fees and settlements.

The type of cover a bespoke policy can provide can include, but isn’t limited to the following:

Intellectual property infringement
Breach of confidentiality
Your failure to give credit of authorship
Trademark Infringement
Breach of the scope of your license with a third party

It is vital to keep in mind that E&O insurance does not cover behaviours that are considered to be intentionally negligent or illegal.

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