You’re Getting Sued for What? An E&O Odyssey (Pt 6)

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 E&O insurance, and which aims to demonstrate that what might seem to a producer to be paranoia on the part of their lawyer is, in fact, well-founded.  These posts will point to actual lawsuits which have been filed against film/TV producers 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.

As reported by Eriq Gardner at Hollywood, Esq., a lawsuit was launched in California against Jay Leno and NBC as a result of the use in a the Tonight Show joke of a picture of a temple.  As described by Fordham’s IPLJ blog:

A California Sikh, Dr. Randeep Dhillon, has filed a lawsuit against Jay Leno, alleging that the Sikh community was the unfair butt of The Chin’s joke on the January 19th episode of The Tonight ShowThe joke at issue portrayed Mitt Romney, the uber-wealthy Republican presidential candidate, as the summer resident of the Golden Temple of Amritsar—the holiest shrine of the Sikh religion.  Seizing on the buzz created by the release of Romney’s tax records for 2010-2011—when he earned $42.5 million in income—Leno mocked the candidate’s wealth by showing Newt Gingrich’s and Ron Paul’s homes, saving “Romney’s” gilded temple for the final zinger. … In the complaint, Dr. Dhillon seeks general and punitive damages for libel.  He claims that the joke “clearly exposes plaintiff, other Sikhs and their religion to hatred, contempt, ridicule and obloquy because it falsely portrays the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh.”

Without getting into the merits of the claim, the situation offers a timely reminder that Canadian entertainment lawyers who are conducting E&O reviews of film and TV projects should ensure that their review is a fulsome one, extending beyond the usual concerns relating to copyright, trade-mark, defamation and personality rights.  Other matters for consideration (and of possible particular relevance for documentaries) include:

  • possible Criminal Code violations, such as obscenity (Section 163), child pornography (Section 163.1) and hate propaganda (Sections 318 and 319)
  • violations of court orders or other legal prohibitions on identifying participants in court proceedings and crimes (such as a court order prohibiting broadcasting the identity of the victim of an alleged sexual assault, or the provisions of the Youth Criminal Justice Act which prohibit identifying youths accused of crimes)
  • contraventions of the broadcasting standards such as those contained in the Broadcasting Act , the CRTC Policy on Violence in TV Programming and the Canadian Association of Broadcasters’ codes of ethics, portrayal of violence and equitable portrayal

(A hat tip to Tony Duarte, whose invaluable resource Canadian Film & Television Business & Legal Practice, provided inspiration for this post.)

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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