Chain of Title
Opinions & Affidavits
At some point in the life of your film or television project – usually when it comes time for delivery of the project and also when you are sorting out your errors and omissions insurance (E&O) but also as a vital component in seeking finance/investment in your project – you may be asked by your financiers, sales agent, distributors and/or insurers for a chain of title opinion and/or a chain of title affidavit.
But what are they? R&C’s Deborah Pegg has the lowdown.
Chain of Title Opinion
A chain of title opinion for film and television is a legal document prepared by a lawyer. It is a crucial component in the production process of films and television shows, especially for securing financing, distribution, and ensuring that your project can be legally exhibited and exploited.
The chain of title opinion serves to verify and document the ownership history of all elements essential to the production. This typically includes rights to the script, underlying literary material (such as a book or play), music, trademarks, logos, and other intellectual property rights. The opinion confirms that you (as producer) or your production company has acquired all necessary rights to your project.
The process of creating a chain of title opinion involves thorough research into the history of ownership and rights transfers for each element. This may involve reviewing contracts, licenses, options, assignments, talent and crew contracts, publishing agreements and any other relevant documents that transfer rights in the project to you, the producer. Any potential legal issues, such defects in the rights transfers, must be identified and addressed to ensure that the production can proceed without legal complications.
Once the chain of title opinion is completed, it provides assurance to investors, distributors, and other stakeholders (e.g. insurers) that you have all the necessary rights to produce and distribute your project. This helps mitigate the risk of legal challenges that could arise during or after the release of the film or television show.
Chain of Title Affidavit
A chain of title affidavit for film and television is a legal document that complements the chain of title opinion, but you may, as producers, be asked just to provide the affidavit on its own. While the chain of title opinion is provided by a lawyer and outlines the ownership history and rights to various elements of the production, the affidavit is a sworn statement signed by the individuals or entities involved in the creation and/or acquisition or transfer of those rights.
The purpose of the chain of title affidavit is to affirm the accuracy and completeness of the information presented in the chain of title opinion or which otherwise would form the basis of the chain of title opinion (i.e. your rights agreements). It provides additional assurance to investors, distributors, and other parties involved in the production that the information provided in the opinion is accurate and legally binding.
Typically, the chain of title affidavit will be signed by the key parties involved in the creation and transfer of rights to the project (i.e. you the producers or you on behalf of your production company). By signing the affidavit, you will attest to your ownership of the rights in the project and that you have not withheld any relevant information regarding the project's ownership history.
The chain of title affidavit is an important document in the filmmaking process because it helps establish legal certainty and transparency regarding the ownership and rights to the project's elements. It also serves as a form of legal protection against potential disputes or challenges to the project's ownership down the line.
What is E&O Insurance?
Errors and omissions (E&O) insurance in the context of film and television production is a specialised type of insurance coverage designed to protect producers, distributors, and other stakeholders against legal claims arising from alleged errors or omissions in the content of the production. It is also sometimes referred to as media liability insurance.
Here's how it works:
Coverage: E&O insurance covers a wide range of potential legal claims, including but not limited to:
Copyright infringement: Claims that the production has used copyrighted material without proper authorisation.
Defamation: Claims that the production has made false statements that harm an individual's reputation.
Misappropriation of ideas: Claims that the production has used someone else's ideas without permission.
Errors in factual information: Claims that the production has misrepresented facts or information.
Legal Defence: If a legal claim is brought against the production alleging any of the covered errors or omissions, the E&O insurance policy will typically cover the costs of legal defence, including legal fees, court costs, and settlements or judgments if the claim is successful.
Preventative Measures: Before issuing an E&O insurance policy, insurers may require the production to undergo a thorough review of its scripts, footage, and other materials to identify any potential legal risks. They may also ask for a copyright report, title report, legal chain of title opinion and/or chain of title affidavit. This process helps mitigate the likelihood of future claims and ensures that the production meets industry standards for accuracy and legal compliance.
Industry Requirement: E&O insurance is often a requirement for obtaining financing, securing distribution deals, and obtaining permits for filming. Investors and distributors may insist on E&O insurance as a condition of involvement to protect their interests in the project.
Tailored Policies: E&O insurance policies can be tailored to the specific needs of each production, considering factors such as budget, genre, distribution platform, and potential legal risks.
In summary, errors and omissions insurance is a vital risk management tool for film and television productions, providing financial protection and legal defence against a wide range of potential claims arising from errors or omissions in the content of the production.
From a background in the media industry (having worked in PR, television production and post-production), Deborah began her legal career as a paralegal in the Film & Television of Top Tier London west-end law firm Davenport Lyons, training and qualifying as a solicitor in 2008, into their Film & TV dept.
Deborah’s experience includes acting for numerous Film and TV producers, banks and equity financiers in relation to the production and financing of a wide variety of film and television projects.