BY:STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI
This Q&A was originally published in the Fall 2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Apart from steering around legal potholes relating to business structure and intellectual property ownership, it’s generally good advice for a producer who wishes to continue for the long haul to avoid lawsuits, either as a plaintiff or defendant.
Perhaps the best advice for a producer in this regard is to choose with care those with whom one does business. If the other party to a deal has a poor reputation for integrity, there may be a good reason.
Another good way to avoid lawsuits is to understand the terms of contracts. A producer who knows exactly what a contract yields or withholds is more likely to avoid the courtroom than one who doesn’t. This maxim applies on the giving side: What is the producer committing to do? Is the cash flow sufficient? Are the obligations reasonable? But it also applies on the receiving end: Is the performance expected of the other party reasonable and feasible? If contractual terms like “warranty,” “indemnification,” “holdback” or other customary industry terms are unfamiliar, the prudent producer will seek advice before signing.
Obviously, lawsuit avoidance should also focus on the content of the production. Will it defame anyone by injuring reputation or invade privacy or publicity rights? Does it unlawfully capture a performance? Does it infringe copyright either by borrowing clips, music, photos or other third-party property? If fair use is claimed, does the production meet the strict criteria that apply to that defense? Although it’s a good idea to be familiar with legal standards that apply to these risk areas, obtaining a legal review is the most practical approach; in any event, that review is required for errors and omissions insurance. This coverage is not only a good way to reduce exposure to the financial consequences of inadvertent defamation and infringement of third-party intellectual property rights, but it’s also a necessary deliverable for deals with distributors, exhibitors and platforms.
Other forms of insurance are also either advisable or necessary or both. General liability insurance, for example, protects a production against property damage and bodily injury to third parties who aren’t working on the production. Workman’s compensation insurance covers bodily injury to cast and crew.
Insurance isn’t inexpensive, but it can avoid ruin, which is the opposite of sustainability.