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Assuming the photos were published before 1923, (or if unpublished, the photographer died before 1946), the images are in the public domain.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

Do I Need Model Release for Khmer Rouge Documentary?

Dear Rich: I shot an on-the-open-road documentary revolving around the killing fields of Cambodia and interviewed many people along the way about their experiences with the Khmer Rouge. I thought I was covered under the journalistic news banner and did not need model releases but now more than a few people are telling me I screwed up and will either get sued or won't get E and O insurance and then no outlet to carry my show. What do you think? By signing a typical release, the subject consents to participate in your documentary and waives the right to sue over claims such as defamation, invasion of privacy, and right of publicity. A release doesn't always shield a documentarian from a lawsuit, but it's a strong defense, and it may be required by your insurer, distributor, or exhibitor.
Releases. A release doesn't have to be in writing. Video releases -- in which the subject is video recorded agreeing to the terms of a release -- are also enforceable. A consent to participate may also be implied. In Clearance and Copyright: Everything You Need to Know for Film and Television, attorney Michael Donaldson writes how Lily Tomlin sued documentarian Nick Broomfield to stop distribution of his documentary about her one-person show. One of her grounds was that she and the people around her, never signed a release. The trial court ruled that neither Tomlin or the other participants ever objected to Broomfield's cameras, a failure that prevented later objection to their participation in the film.
Bottom line dept. If you can afford the attorney fees we would suggest consulting with an attorney knowledgeable about film clearance.

Can I Use Betty White Picture in Documentary?

Dear Rich: My daughter is doing her first short student film (5 minutes). It's about an elderly woman who lost her husband and is continuing her life by auditioning, etc. In the film she is using a poster of Betty White, shown very briefly as inspiration for the main character. She bought the poster on Amazon. The poster does not cite any publisher or maker. Her instructors in her film program expressed concern about using the poster without permission from someone. They suggested she needs a lawyer to draft up a fair use statement. This is a student film. It is not going to be sold, nor submitted to film festivals, etc. It will only be available on an internal university platform that is passcode protected where only students can view. The instructors are threatening to remove the footage from her class film out of fear of being sued. What is the best course of action? Does permission need to be secured in this case? Who should give permission? Betty White? The producer of the poster? Both? Does having a fair use statement drawn up by a lawyer accomplish anything? Do you have an example of such a statement? Or should she just give up and delete the footage because it is too complicated at this point to figure out? We'd hate to see footage deleted, especially when it is part of a preemptive CYA academic scheme. In our humble opinion it really seems like overkill to require such an opinion for this scenario and under these conditions ... but hey, it's been a long time since we went to school and we assume that litigation crazed copyright owners have altered the academic climate. Maybe we can find a way to save Betty White!
Fair use opinions. Yes, fair use statements are often drafted by lawyers for movie companies who need them for the benefit of insurance companies. In fact, insurance companies often pre-select attorneys for these legal opinions based on their expertise and experience. Such statements provide an opinion supported by current case law.
Permission from Betty White? Betty White has the right to halt commercial uses of her image under right of publicity rules -- for example, in ads or to imply endorsement of a website. But, unless she owns the copyright to the photo, no permission from Betty White is required to use her poster for a documentary film.
Statement of Best Practices.  We think your situation is an ideal one to apply the Documentary Filmmakers' Statement of Best Practices in Fair Use (prepared by The Center for Social Media). the Statement "makes clear what documentary filmmakers currently regard as reasonable application of the copyright fair use doctrine ..." and has been accepted by numerous broadcasters as well as four insurance companies, thus simplifying the clearance practice and avoiding expensive opinion letters. You should review that document and attempt to fit your use into one of the four classes. For example -- if the subject of the film (not the documentary maker) acquired and used the poster, your daughter may make a convincing argument using the third class of situations -- "Capturing Copyrighted Content in the Process of Filming Something Else." You may also benefit by reading up on the "transformative" aspect of fair use as well as looking at some summaries of fair use cases.
If fair use does not apply ... If fair use does not excuse the use, you would need permission from the person who owns the rights to the image on the poster, typically the photographer.

Can We Use Famous Person's Name in Documentary Title?

Dear Rich: Can you use the name of a famous person for documentary title, and how do you trademark the documentary? Assuming that your documentary has something to do with the famous person, you can use the person's name in the title. As we mentioned in a recent entry, a celebrity's right of publicity doesn't extend to communicative/informational uses such as documentaries or news articles.
Trademark rights. We think you mean "How do we register the name of our documentary as a trademark?" The answer is that you cannot federally register a single title for a book, documentary or fiction film as we discussed in a previous entry.

Do I Trademark My Documentary?

Dear Rich, I am filming a documentary. Should I trademark it? Should I brand my documentary? How do I do that? Just in case you don't understand what a trademark is, we provide some background here. We can save you some time --  a single book title or movie title cannot be registered at the U.S. Patent and Trademark office. You can, however, register a title that's part of a series, for example, the Up series. (Here's an article with some workarounds for acquiring trademark protection for single movie titles.)
Branding. We remember when "to brand" meant to burn the flesh of an animal to indicate ownership. Ouch! Nowadays, of course, it refers to all kinds of marketing stuff typically related to a product or service line. In addition to product branding, there's personal branding, faith branding, nation branding, and employer branding. We're going to assume that branding your documentary means that you want to expand your "product line" to as many happy customers as possible. We couldn't tell you how to do that and if we could, we'd probably be doing something else.

Does Fundraising Documentary Require Photo Releases?

Dear Rich: I’m creating a documentary for a non-profit aquatics club that will provide background information on the organization before fundraising pitches. The documentary covers the organization’s history in relation to the surrounding area and testimonials/interviews from current members, former members, and local residents. To add visual appeal, I’d like to use photographs from a local newspaper (ranging from the 1950’s to the 1990’s), personal photographs, and professional sports team photographs spanning the facility’s history. I’ve already obtained unlimited interview and image releases from the interviewees. I’m going to contact the newspaper about the published images; and I’m going to contact the photographers who took the team photographs. Since many of these photos are old and feature many people, I will unfortunately not be able to obtain personal image releases from everyone. Are these images considered informational since they appear in a documentary presenting facts? Is this documentary considered informational even though it will be used during fundraising activities?  Personal releases shouldn't be required from people whose still images appear fleetingly in a documentary, especially in the context you're describing. (It sounds like you've got the other side of the issue -- copyright permission from the newspaper -- also covered.)
Documentaries raise funds. The fundraising aspect of the project doesn't negate the informational quality of the work. After all, just about every documentary directly or indirectly is tied to a financial cause, even if that cause is the filmmaker's pockets (yes, sad to say, Jackass 3D is considered a documentary). A documentary maker usually only needs a photo release if a person's image or personna is used to sell a product or service, or if you are invading the privacy or saying something that might be considered defamatory (we discuss these standards in more detail in this article).

Can I Expose Exxon in My Documentary?

Dear Rich: I am making an independent film about life on our ranch with ExxonMobil. I had a blog for a few years and youtube page. For three years, I filmed lots of Exxon activities on the land that is owned by my husband. About a six months into my blog writing, ExxonMobil sued me for tortious interference saying "my shenanigans raised their operating costs" because they had increased inspections from regulators. So, I am aware of how they can be big bullies with their lawyers. However, when I was not intimidated, they just backed off and I kept filming and writing. I never got any releases from Exxon workers or subcontractors but I have the permission of the land owner (my family). Of course, everything has Exxon stickers, etc. I even interview the people working there. Exxon's partners (El Paso Corp) sued me for tortious interference and exposing trade secrets on my blog. But, we made an agreed judgement where those claims were dismissed with prejudice. I am planning to make my movie free and put it on iTunes and the Internet. I have this idea that free speech is more protected than commercial speech. But, I don't know if that is true and where I got this idea. I also think that people are less likely to sue me if they think there is no money in sales to fight over. What do you think? We admire anyone who has something to say and doesn't let other people stop them from saying it. But we're also protective of anyone who calls themselves a Dear Rich reader, so we'll provide the legal rules with a caveat that you're already probably aware of --  free speech will protect your rights, but proving you have those rights may prove to be a burden. There is some recent good news for you. Last month, Texas passed its version of an anti-SLAPP law (as explained here). Anti-Slapp laws even the playing field by stopping lawsuits that are used to censor speech. That law could prove helpful if the claims brought against you are trivial or have no legal basis. Anyway, here are the legal rules.

• Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
• Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
• Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
• Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret. 
• Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
• Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
• Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film. 

Protecting an Idea and Title for a Documentary

Dear Rich: I'm making a documentary soon and before I begin to publicize it and fundraise I would like to protect the title and idea from being used by others. How do I copyright this? Short Answer Dept. Forget about copyrighting your idea. Copyright doesn't protect ideas; it only protects the expression of the idea. For example, anyone could make a film of the recent tidal surge at Richardson Bay (and many have) but only after each film is created is it protected by copyright. It's true that some documentary ideas -- for example the idea of filming a 30-day diet on junkfood, or the idea of confronting the president of General Motors, or even the premise of living for a year without buying anything new, may be so strongly associated with specific individuals that copying the premise violates unfair competition laws. But these documentaries are rare examples and the protection would only kick in if the movie is completed and has become popular.
What about the title? An individual title for a movie cannot be protected under copyright law (short phrases don't get any respect) and it's difficult to protect under trademark law. You can register the title with the Motion Picture Association of America. But that's a limited form of protection -- an agreement among members (mostly big time studios and producers) who sign a contract that they'll avoid infringing registered titles.