Anyone here had to get this? How much does it cost? How involved is it to get this? We are working on two distribution deals and both require this (and our budget is stretched BEYOND zero). Any advice would be greatly appreciated!

Eric

It is usually between 7 to 10,000 $. It is very expensive. Sometimes can be hard to get depending on how careful you were with what you show on screen, especially in terms of brand names and such.

Good luck if you are out of money.

I've not heard of this kind of insurance. What does it do?

I've not heard of this kind of insurance. What does it do?

Errors and Ommissions Insurance covers yor film from any accidental uses of trademark logos, property, even incidental (unintentional) music in your film. If you get sued in a civil suit for any usage, this will cover it.

So is it a common practice then to buy this insurance when the producers think they won't be able to get rights to something?

So is it a common practice then to buy this insurance when the producers think they won't be able to get rights to something?

No, it's common practice if any distributor or retailer intends to ell your product. If you don't have Errors and Ommissions insurance, no retailer or rental house will touch your movie lest they be construed as responsible.

We have to buy Errors and Ommissions for Horrors of War and there's nothing in it possibly copywritten or trademarked, with the excetions of character names that may or may not be those of any person living or dead. Any similarity is coincidental and not intentional. Just writing that in is not enough, you need the poer of a polic to cover it thoroughly.

How much of the screen does a trademark (seen in the background) have to take up in order to be a trademark violation? Example: Would a coca cola logo that takes up less than 10% of the screen be OK?

Even a glimpse for a frame or two can be considered a violation. This is one of the reasons E&O is required by distributors - you never know who might sue over what. Coke may not care, but then again...

People used to go by a 6 second rule in music use.. they'd say that if there's 6 seconds or less of a song, you're OK... WRONG! Anything recognizable to the trademark owner can cause problems.

So even if you've gotten a product to sign off and give you permission to film their logo, theoretically you'd still need E&O?

If you want distribution, yes. Distributors may not even talk to you if you do not have E&O.

I remember reading in a law book that you have every right to "dress your set" with real products. I think it becomes an issue when there is focus on the product OR if the product takes up a certain amount of screen space. I'm sure there is court precedent based on prior cases. I just don't know where the line is drawn.

I took a seminar from a 'famous' film seminar-giver and he indicated that as long as you are using the product as intended, you're fine. Although I'm not sure that coke would be happy being featured in a nudie slasher animal-killer porno flick - even if the 'actors' are just drinking it. :lol:

using the product as intended
So I guess the trademark holder would have to say that somehow their product was "tarnished" in order to file a suit in the first place. I am working on a movie and there's a bunch of a certain cigarette brand seen behind the guy at the counter in a liquor store. The attention of the shot is always on the guy talking behind the counter however.

You have every right to dress your set how you like. The reason lots of indie filmmaker don't use trademarked and copyrighted products is a company might not want it used and cause problems down the road. It's hard enough getting a movie distributed without a hassle like that.

The law may be on the filmmakers side, but even winning a suit can be expensive. And even if it never get to a law suit, distributors don't want to spend time dealing with companies and lawyers. Most times it's best to either get permission before you shoot, or just avoid it in the first place.

as long as you are using the product as intended, you're fine.

In the strictest legal sense - this is NOT true. Trademark holders hold ALL RIGHTS to the useage of their intellectual property that is granted registration. Do NOT use any trademarked images or properties in your film without permission, as much as possible. For contemporary stories, it will be impossible to catch them all, so that's where ERRORS AND OMMISSIONS INSURANCE comes into play.

How funny I just shot a 2 day seminar for the U.S. government on Patents, Trademarks, and Copyrights.

Depending on your sales and distribution team you may get away with it up front. It was a condition of our sales agent agreement that we had E&O HOWEVER we cut a deal that teh E&O would be paid when the money started coming in.

I have only ever needed E&O for the US and associated teritories (and occasionly UK) so this enabled us to of set sales against the E&O. In the end our US distributors decided they would cover it and take it out of our end of the profits.

Eitherway we didnt have to pay upfront. Hope this helps!

Trademark holders hold ALL RIGHTS to the useage of their intellectual property that is granted registration.
Yeah but there is "fair use" in some situations.

Yeah but there is "fair use" in some situations.
Once again, you are right. But it comes down to - is it worth it for the distributor to fight a law suit to prove "fair use"? Many won't. And if (just as an example) Coke doesn't want their product in your movie and they fight it, it could cost a distributor tens of thousands of dollars to prove it's use falls under "fair use".

That's why distributors prefer a finished product that is completely free and clear of any possible legal action. And why E&O insurance is needed.

If a distributor wanted your film, and you had no budget for it, wouldn't they pony up for E&O?

If a distributor wanted your film, and you had no budget for it, wouldn't they pony up for E&O?

See I'm not sure. The issue here is that the market is flooded with product and it get's tighter and tighter to make a profit (damn that affordable, unelitist technology) and there for companies now tend to write in that you need E&O and in fact it should form part of your budget.

Which is funny because a lot of films dont have a budget!

It might not be my place to speak on this subject since I haven't distributed anything. I would think that even if your budget is $5,000 and you get picked up to be distributed, you could work a deal with the distro to have them absorb the costs. Some may not even look at it unless you have it, others may work with you. It all depends on the distributor YOU choose to work with. If they feel your film will make them money, then they should be willing to work with you to comply with certain requirements and protections.

If a distributor wanted your film, and you had no budget for it, wouldn't they pony up for E&O?
I'll just add a little to what Coot said.

That's a huge IF. There are very few "Clerks", "El Mariaci" or "Open Water"'s out there. A movie a distributor is willing to spend a LOT of money on to get it out there. Yet there are a lot of no budget movies that get DTV release. Sometimes - MOST of the time - the decision is going to come down to "which two of the five good movies we have here are we going to spend money to distribute?"

But yes, Media Hero, if your movie is that good - so good that a distributor will cover all your legal costs because they KNOW they will recoup - then they will pony up the money.

Alas as Direcorik says that is not often. The best bet is to try and convince them to of set the cost against sales or make sales elsewhere to cover the cost. The biggest issue here is that the US sales is one of the biggest and in term of profile def one of the best.