BY:Steven Beer, Jake Levy & Neil Rosini
This Q&A was originally published in the Fall 2017 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Many producers working on independent projects do not think about obtaining E&O insurance until they complete their production and are presented with a distribution agreement that requires it. Productions that are higher risk, whether due to controversial subject matter or a lack of specific authorizations from third party rights holders whose material is included, should apply for E&O insurance as early as the budget allows. In fact, some networks, studios and financiers require that E&O insurance be put in place during development.
As soon as details of a project become known to third parties, either intentionally disclosed or leaked, there is a risk of a claim, and in the absence of E&O insurance, that claim could endanger further production. Projects that portray a real person or otherwise relate to a real person’s life story are particularly exposed to this trap because in many instances, it won’t be feasible to acquire express permission from that person and filmmakers will rely instead on their rights under the First Amendment. But notwithstanding those rights, the depicted person may still bring a claim and if no E&O policy is in place, not only will the producer be on his own for defense and liability costs, but if the project does move forward, future claims relating to that complainant will no doubt be excluded from coverage.