This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance. The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia. These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.
Giving E&O “clearance” advice is usually a mix of substantive legal analysis (“does the proposed inclusion of this famous person’s image in this movie violate their publicity rights?”), practical risk assessment (“this is a film which seventeen people will see – how is the famous person going to find out about it?”) and instinct (“that famous person has a reputation for aggressively protecting their interests”). Producers, their lawyers and the lawyers of the E&O insurer often engage in a bit of hemming and hawing about how to handle a particular situation, and the final decision can come down to a frank financial judgment: the deductible on your E&O policy is $25,000 – are you willing to pay that amount if someone files a claim just because you think that including this possibly-violative image is critical to the “artistic” merit of the project?
Over time, most entertainment lawyers develop a bit of a sixth sense about what is and what isn’t advisable when it comes to E&O clearance (e.g., anything involving Disney, Coca-Cola or the Elvis Presley estate should be authorized). Sometimes, though, things just come out of a clear blue sky:
Yup. 80-year old imprisoned former Panamanian strongman Manuel Noriega has filed a lawsuit in Los Angeles County against the publishers of Call of Duty: Black Ops II, one of the most successful videogames of the last few years, on the basis that one of the “missions” in the game requires players to capture an on-screen villain depicted as Noriega. Based on news reports, the lawsuit appears to allege defamation and infringement of Noriega’s right of publicity.
One can just imagine the discussions which took place about whether there was any risk in including Noriega’s image in the game (“dude, he’s 80 years old and he’s in prison in Panama – what’s he gonna do, sue us?”). For what it’s worth, I think an awful lot of entertainment lawyers I know would have counselled their client that there was risk in using Noriega’s image, but it was probably a pretty low practical risk. There are certainly defences which can (and will) be raised against the lawsuit (free speech being the most obvious; truth, lack of malice or fair comment as a defence to the defamation claim; the untenable nature of Noriega’s claim to be entitled to a share of the profits) – but it’s always best to avoid having to be dragged into court in the first place (which would certainly be the preference of the defendant’s insurer). Ultimately, just because a risk is awfully low doesn’t mean it doesn’t exist. I’m looking forward to dragging out the “Manuel Noriega sued for using his image” story in future discussions with clients.