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You’re getting sued for what? An E&O odyssey (part 11)

By Bob Tarantino

This post is part of an occasional series highlighting the type of risks that film and TV producers face and that are supposed to be covered by ‘errors and omissions’ (E&O) insurance. The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia. These posts will point to actual lawsuits that have been filed against producers and distributors for various alleged rights infringements (whether copyright, trademark, right of publicity or otherwise) — and that inform the nit-picking approach taken by producer’s counsel.

Giving E&O ‘clearance’ advice is usually a mix of substantive legal analysis (‘does the proposed inclusion of this famous person’s image in this movie violate their publicity rights?’), practical risk assessment (‘this is a film that 17 people will see — how is the famous person going to find out about it?’) and instinct (‘that famous person has a reputation for aggressively protecting their interests’). Producers, their lawyers and the lawyers of the E&O insurer often engage in a bit of hemming and hawing about how to handle a particular situation, and the final decision can come down to a frank financial judgment: the deductible on your E&O policy is $25,000 (£15,000) — are you willing to pay that amount if someone files a claim just because you think that including this possibly violative image is critical to the ‘artistic’ merit of the project? …

Click on the link below to read the rest of the Dentons briefing.

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