Half way: E&O Insurance:
JK: One of the topics that comes up again and again in MMP projects is the question of insurance - whether it is insuring the director, key subject, actors,
materials etc, against damage and loss and so on, as well as E&O policies
Intellectual (Music) Property Rights:
JK. When one co-producer wants to clear e.g. music rights for limited amounts of time, for limited territories and terms , his fellow co-producers might end up in trouble, since co-producers typically own their home territory outright and in “perpetuity”
So rights should be pre-cleared world-wide in perpetuity by the lead producer – who also has to come up with the largest amount of money for them, and sometimes will want to wait “until they are needed” to pay.
(NB. Ditto for Film and TV material used in the co-production project. Is it really worth paying thousands for 35 seconds of Olympic material for a hugely limited term as part of a scene – not dramaturgically significant - when re-shooting using material showing a local TV programme would turn out to be infinitely cheaper?)
William Furnivall: Co-producers should be aware that anyone who submits a script with a definite piece of music tied to it is asking for trouble, unless correctly budgeted and with the required clearances set out, submitted for approval between all the co-producers.
It will depends on the spread of obligations – normally the majority producer responsible for the main shooting should sign a policy . There are alternatives – it can for example be a minority producer who is signing for a part of
the production. It can normally be an investment of ca. or up to 20,000 Euro, adding E&O when required.
You should get a specialized lawyer dealing in E&O to check the script or even a rough cut of the film to see how viable a policy would be.
Leo Wurm: It should also be remembered that E&O policies are finite – once signed the clock is running.
Julian Friedmann: a writer has to give a warranty and indemnification that what’s written will not defame or otherwise attack people or laws.
Where an original idea but based on fact is concerned, the writer must guarantee to the producer that due diligence in veracity has been performed. Sometimes that will be difficult for a writer to do, so an E & O agreement should cover them as well, and it should be pre-agreed that any changes needed by co-producer in this area for their home territory must be agreed by the writer.
JK: So it is up to the extent of cover in an E&O policy whether co-producers
participate in cost for something that may practically only be needed for a North American deal, similar to other insurances applying locally.