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Insuring reality Carriers discover fertile field in covering documentaries By Phil Zinkewicz At this year’s Academy Awards ceremonies, the coveted Oscar for Best Documentary Feature went to former Vice President Al Gore, whose film “An Inconvenient Truth” explores the dangerous consequences of global warming by examining the effects of climate change on the planet. Documentarians differ from the ordinary Academy Awards contenders in that their intention is usually to inform, educate and, sometimes, to persuade. Also, their material can run a wide gamut of social and/or political issues. Consider Gore’s competition in this category: • “Deliver Us from Evil”—An investigation of the child molestation scandal that recently rocked the Catholic Church. • “Iraq in Fragments”—A profile of the three principal groups vying for power in Iraq. • “Jesus Camp”—At a summer camp for evangelical Christians, children speak in tongues and pray for the appointment of pro-life Supreme Court justices. • “My Country, My Country”—In the months leading up to Iraq’s first post-Saddam election in 2005, difficulties mount in a society long used to other methods of resolving issues. All of these situations—and many more—have become fodder for documentarians. Documentaries are usually low-budget (certainly lower budget that most feature films), sometimes have a tinge of danger about them and almost always are thought-provoking. Like feature films, documentaries also need insurance. Coverage needs The Chubb Group of Insurance Companies’ entertainment division not only insures feature films but also arranges coverage for documentaries. Gene Williams, entertainment practice leader, says that underwriters must ask some key questions to meet document-arians’ insurance needs. “What kinds of equipment are going to be used?” is one of the first questions. “Do the documentarians own the equipment, or will they rent it? How will they travel with the equipment? If they own the equipment and something is damaged, ‘cost to replace or repair’ might be sufficient. However, if they rent the equipment, the rental company might insist on reimbursement for loss of use. That will make a difference in the insurance needed. Cameras are usually the most expensive items for documentarians. Will they be using film versus video or some sort of high-definition cameras? The more typical cameras are worth about $200,000, but some high-definition cameras can be worth upwards of $1 million.” Williams says that in any kind of film, including documentaries, a key underwriting factor is the venue. “Will they be shooting on location in a dangerous part of the world? Extra expense coverage might be necessary if a piece of equipment is damaged and a replacement must be sent for.” The Chubb executive says also that, if a documentary is filming a one-time event, such as a royal wedding or a concert, documentarians will need some form of cancellation insurance if something goes wrong, such as an artist becoming ill. “Non-appearance coverage might apply here,” Williams says. “Or if film is damaged in transport, coverage should be in place.” Rarely is there a need for cast coverage, according to Williams, because participants in a documentary are usually real people, not actors. “But some films depend very much on a particular cinematographer or director, and if something happens to one of them, there could be a need to abandon the project. Here again, special insurance coverage is needed for the documentarian to prepare for the potential loss,” says Williams. “We have a team of film experts in various places all over the world dedicated to providing the coverages that documentarians need. It’s not a question of just providing a package of coverages, because some might not need all the coverages in the package, while others might need more. Our people are trained to ask the right questions before the insurance contract is signed.” Another long-time leader in the field of entertainment insurance is Fireman’s Fund. Joseph Finnegan, vice president of entertainment, and Wendy Diaz, entertainment underwriting director, say that documentaries are on the rise and that their subject matter, usually informative, can range from a small story involving one person to something on the order of National Geographic. “Documentaries are attractive because they cost so much less than full-length feature films,” says Finnegan. “For artists just starting out, this might be the way to go.” Diaz says that Fireman’s Fund’s entertainment unit insures the documentarian against damage to or loss of equipment, faulty processing of the film negative, damage to a third party and extra expenses, but does not write cast insurance. “With Fireman’s Fund, insuring the entertainment industry is a labor of love,” says Diaz. “We have the ability to put ourselves in the customer’s shoes and understand what the customer needs. We understand the process of production, and we know what can go wrong.” In fact, Fireman’s Fund has produced its own two-hour documentary titled “Into the Fire,” in which firefighters from across the country tell true stories of heroism and heartbreak. Last October, the documentary premiered on The History Channel. Copyright infringement An exposure of critical importance to documentarians is copyright infringement. Insurers and film distributors typically require producers to obtain specific permission for use of copyrighted material in a film. Licensing copyrighted material, however, can be prohibitively expensive or impossible for new or independent filmmakers—an economic barrier that seriously hinders freedom of expression. A solution to this problem came earlier this year when Media/Professional Insurance, a brokerage that is considered to be a leader in media and entertainment liability coverage, teamed up with top intellectual property lawyers and the Stanford Law School Fair Use Project to enable filmmakers to insure against claims arising out of “fair use” of copyrighted material. The initiative was announced at the International Documentary Association’s 25th annual celebration of Academy Award Documentary Nominees in Beverly Hills, during the run-up to the Oscars. “Typically, insurance companies insuring documentaries that contain film clips that are copyrighted want to know if the producers obtained permission from those holding the copyrights,” says Mike Enos, vice president of marketing for Media/Professional. “That can be extremely expensive. This is where the ‘fair use’ doctrine comes in.” The fair use doctrine, written into the federal copyright law and developed in case law, permits limited use of excerpts from films or video clips, if that use meets the “fair use” guidelines. The guidelines say that fair use may be applied if the material is criticism or commentary or is the source of education. Some examples of documentaries that have used copyrighted material as a crucial cinematic tool are “This Film Is Not Yet Rated,” a critique of the MPAA movie rating system; “Smoke and Mirrors, A History of Denial,” a look at the tobacco industry and health risks; and “Who Killed the Electric Car?” which examined the auto industry’s opposition to electric cars. Ken Goldstein, worldwide media liability manager for Chubb, says that the fair use doctrine has been in existence for some time. He says the move on the part of Media/Professional is a reaffirmation of the doctrine, letting documentary film producers know that insurers would accept the fair use doctrine as a defense in a copyright infringement lawsuit. “It provides comfort to independent film producers that their insurance coverage will not exclude coverage as long as the producer calls upon the fair use doctrine,” he says. The initiative was suggested to Media/Professional by Michael Donaldson, a leading intellectual property and entertainment lawyer as well as general counsel for Film Independent and past president of the International Documentary Association. “Fair use has been accepted legally for more than a century because free expression is one of our most important values,” says Donaldson. “Creativity, critical analysis and cultural critiques are fostered, and sometimes only possible, when filmmakers can use otherwise copyrighted material,” Donaldson continues. “We’re not pushing the envelope legally. Fair use is always limited and provides protection for copyright holders.” Goldstein says that Chubb is working with Donaldson to develop language in its own policies to assure documentarians that they will have fair use insurance coverage. Finnegan of Fireman’s Fund agrees that the fair use doctrine is of paramount importance to documentary film producers. “In the past, the idea was to protect the material at any cost,” he says. “But things have changed. The public is demanding that the movie industry begin to share material. This demand on the part of the public is going to require that we share content with each other.” * |
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