What about when film producers are unable to obtain music rights?

What about when you have bargained for music rights but were unable to obtain them?

Byron Pascoe: Producer’s errors and omissions (E&O) insurance applications have a lot of questions and they are important questions to consider. Oftentimes, I suggest to producers that before they start filming or planning anything, that they read an E&O application to see what it says about what they will eventually need to get insurance.

One of the music questions [on an E&O application] relates to whether you have tried to get permission but were unsuccessful. It’s important to be truthful with respect to every question on the application, including a situation in which you’ve tried to get consent for a song but you haven’t been able to. So, if I’m reading an application before it gets sent to an insurance broker, and if you’ve answered, “yes, you’ve tried to get a song cleared but were unable to,” I would say, “hold up a second, what’s the situation here? Are we trying to get consent still? Did someone say no but you’re using it anyway?” Based on the circumstances, we probably want to deal with this before we’re talking to the insurer about it.

If you haven’t got consent and you’re not going to get it, perhaps you’re not going to use that song. Let’s just remove that point from our application because if you’re not going to use the song anymore, it’s no longer relevant. If you’re still trying to get permission and they’re pushing back, you’re negotiating but you need your insurance ASAP, then it’s, “OK, let’s put that in there. You’re having trouble getting consent but let’s explain the situation, namely, you’re not going to put the song in the movie if you don’t get consent.”

So, it’s an interesting question in the application and it’s important to be truthful with your lawyer and insurance broker about such things. Generally speaking, if you’re not able to get consent, you’re not going to use the song in the production, but it’s important for everyone to be aware of where you’re at in the process when you’re applying to get E&O insurance.

Byron Pascoe is an entertainment lawyer and partner at Edwards Creative Law

Are you a producer in Canada or the US? Get a quote for producer’s E&O insurance here.

Related:

• Why do you need to answer ALL the questions on an E&O application?
• Who can give consent to have music be in a film?
• Producer's E&O clearance procedures
• eBook: Producer's E&O Insurance 101
• YouTube: Byron Pascoe's film producer's E&O videos

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