By Seth Cohen
These days, scripted nonfiction programming is in big demand by the television networks, cable outlets, and streaming services.
High profile murders like Jon Benet Ramsey’s and murder trials like O.J. Simpson’s are popular subjects for this programming, as well as documentaries focused on controversial issues like GMO crops, environmental change, and our dietary habits.
For all the popularity of such reality-based programs, though, there is also a downside risk. Producers have to take care they don’t run afoul of people or organizations that may be connected with the subject matter. It makes getting the appropriate permissions and clearances from the outset essential, and media liability insurance is a critical protection for any unintentional failure to secure approval.
Media liability insurance is a type of errors and omissions coverage for media-related organizations, designed to protect them against legal actions claiming defamation, slander, invasion of the right of privacy, copyright and trademark infringement, unauthorized use of a title, format, and/or plagiarism.
It is necessary for all types of productions, both scripted and unscripted, but the risk is higher for scripted nonfiction. This E&O coverage should be secured at the start of any project.
To leave it until later, even if it’s not contractually specified, can create problems. You may have your funding commitments and the storyline developed and everything ready to go, only to find out there are issues with the content. Those with a vested interest in the topic may insist you exclude material, or threaten legal action if the production moves forward.
For instance, a television production secured story rights from the daughter of a female serial killer, who had committed suicide when caught. However, the killer had a partner in jail whose case was on appeal, and there was concern the script would influence the jury.
An expensive conversation followed which involved the writer, producer, director, lawyer, insurance company, and the accomplice’s lawyer. The script was reviewed at length, line-by-line, and approval was demanded for inclusion of anything crime-related. The production company spent countless hours on this during production, and the talent waited to work.
Another issue that arises in production is the issue of “Fair Use,” a doctrine that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. It is important to have an attorney who specializes in this providing guidance.
Media liability insurance must be adequately budgeted for, and a good broker relationship makes all the difference. When considering what is at stake for a delayed or cancelled production, media liability is as essential as any other production insurance purchased.
HUB International’s team of Entertainment Insurance experts are ready to guide your team on all the risks associated with producing content.