Errors and omissions insurance for your film or series: which legal documents do you need?

As the producer of a film or series you are often asked to take out errors and omissions insurance. The reason is that your buyer, the distributor or the streamer, does not want to run the risk of claims, such as claims for infringement of copyright, image rights or trade mark rights, or claims for defamation and calumny. And that stands to reason. If your production turns out to infringe, the streamer is liable too. The consequence: the film may no longer be shown. So the insurance is not there for you alone, it protects the whole chain.

To take out errors and omissions insurance you have to supply a series of legal documents as producer. Which ones depends on your production, but below you will find the documents you will almost always have to deal with.

Chain of title

A great many people and companies work on a film or series who can claim (copy)rights in it on the basis of their contribution or of contractual arrangements. An agreement has been concluded with all of these parties, if all is well. And if all is really well, those agreements channel every right to you as producer. That, at any rate, is what an errors and omissions insurer or distributor requires of the producer.

We help you set out and assess all the agreements. Should there be a hitch, we draw up the missing agreement for you so that every right in the film or series really does rest with you as producer. You are happy, the insurer and distributor are happy, we are happy. More about this on our page about the chain of title.

Clearances and licences for the use of third-party works

Your film or series may contain fragments, footage or music belonging to third parties. In principle you need that person’s permission to use their work.

Is music involved? Then additional music rights often come into play: the rights of the composer, the lyricist, the performing artist and the record label. All of those have to be arranged separately or through a collecting society such as Buma/Stemra.

Sometimes, where certain statutory conditions are met (such as the right of quotation or incidental inclusion), that permission may not be needed. We assess what use has been made of another party’s work and whether permission is required for it. It is reassuring to know for certain whether or not you have to pay for the use of those fragments or images. How that process works is set out on our page about clearing rights.

Title report and title opinion

A title report is an assessment of the title of the film or series. In it we assess whether the prospective title infringes third-party rights, such as trade mark rights or copyright. A title report can be a requirement for taking out errors and omissions insurance. As a producer you may also want one in your own interest. It is a comfortable thought that the release of your film will not bring trouble over the title.

Copyright report

A copyright report is mainly a requirement for the American market. To prepare one, the registrations at the United States Copyright Office are checked and assessed for potential problems. Where a work is registered, the report describes when the work was created, when it was first made public, and the registration history, both of the work itself and of any transfers and licences.

Script clearance report

To prepare a script clearance report we assess your script for potential infringement of copyright, trade mark rights and privacy rights, and for damage to honour and reputation (defamation and calumny). We also examine the names of the characters and any other issues that could lead to legal trouble. That way you know where you stand before filming starts.

Negative clearance: assessing the film or series itself

A negative report (’negative’ in the sense of the film negative) is an assessment of the picture lock version of your film or series. We assess whether your film infringes copyright, trade mark rights or image rights, in words as well as in pictures. We always prepare such an opinion or report in close consultation with you as producer. And should we identify a risk, we always help look for a pragmatic solution before finalising the legal opinion.

What does errors and omissions insurance cost?

The premium depends on a few factors: the scale of your production, the countries you want to distribute in and the risk profile of the content. A documentary or biopic carries more risk than a fictional feature, since you are working with real people and situations and the chance of claims is correspondingly greater.

Alongside the insurance premium there are costs for preparing the legal opinions and reports. Those vary from project to project. A short documentary with little third-party material is a different proposition from an international co-production with dozens of music licences.

Roland Wigman

Merel Teunissen

Lawyers for film and television series

Merel Teunissen and Roland Wigman are film law lawyers and have spent years guiding producers through the legal sealing of their productions. They have extensive experience with the legal side of film financing and international co-productions, and regularly prepare legal opinions for insurers or streamers. Merel and Roland both teach at the Netherlands Film Academy.

Would you like to know what your production needs? Get in contact and we will discuss which documents you need and what the costs are. Prefer to call first? That is fine too: 020 675 88 21.