The Role of Multi-Media Liability Insurance
According to the Yanks, media liability insurance was created in Kansas City in the USA. One may have thought it more likely Hollywood.
Apparently during the 1920s, a book editor, by the name of William Edgar White, sought underwriters to provide a specific line of insurance to indemnify against media exposures.
The aim of the cover was to provide for defence costs as well as indemnity for a first party loss.
The policy generally includes:
- Invasion of privacy
- Copyright infringement
Some claims typically not covered under a multi-media liability policy include:
- Employment practices
- Breach of contract
Claims against media groups are thriving. Some examples of recent litigation include :
- During the 2010 Super Bowl a Hyundai commercial titled “Luxury” aired that showed a basketball bearing a striking resemblance to Louis Vuitton’s trademarked logo. The luxury designer filed suit against Hyundai alleging trademark violations. Hyundai tendered the defense of the lawsuit to their advertising agency. Turns out neither Hyundai nor its ad agency asked permission to use the trademark.
- In the Hangover 2 movie, Ed Helm’s character wakes up in a bathtub with a large tattoo on the side of his face that matched the one Mike Tyson has on his face. The tattoo artist who gave Tyson the tattoo filed suit against the movie’s production company claiming copyright infringement. The suit included an injunction against Warner Brothers demanding the release of the movie be delayed until the matter could be resolved. Warner Brothers initially agreed to alter DVDs after the movie’s run in theaters. Fortunately for the production company, the matter eventually settled and no changes to the DVDs were necessary. Most policies exclude coverage for changes, so the correction costs would have been borne by Warner Brothers alone.
- The Ellen DeGeneres show features an opening dance in each segment. The music playing in the background became the subject of a copyright infringement lawsuit in 2009. In the past, television shows could use music under the ephemeral use doctrine (ephemeral means short-lived), especially during live shows. But with syndication comes repeated playing of the music. “Warner Brothers and the Ellen DeGeneres production company had clearances and licenses for compositions, but not for the sound recordings themselves,” said Franklin. Both are necessary to broadcast live music on a television show. In this case, the defendant’s initial response was “we don’t roll that way,” according to Franklin. Not surprisingly, the case ultimately settled without litigation. Music claims are very expensive, Franklin said.
- The ESPN Wide World of Sports Complex at Walt Disney World in Kissimmee, Florida., became the subject of a copyright infringement lawsuit due to its architecture. In 1987 a retired umpire and architect pitched an idea for a sports complex. Ten years later Disney decided to build a sports complex. Though it didn’t look much like the one the architect proposed, he filed a lawsuit claiming Disney stole his idea.
- Vanna White and a robot. The case, Vanna White v. Samsung Electronics, decided over two decades ago, involved an ad run by Samsung featuring a robot dressed to look very much like Vanna White standing by a Wheel of Fortune-like game board. White sued, alleging an infringement on her identity and won.
Plagiarism is often alleged against Movie makers. Sometimes injunctions to stop films are filed. These usually arise during the publicity and promotional period. The advertising costs can even exceed the costs of making a film. Changing a marketing campaign can be a costly undertaking.
Under a multi-media liability policy the types of relief covered include:
- Defence costs
- Compensatory damages/settlement
- Some policies include coverage for cost of compliance with injunctive relief
- Some policies also cover punitive damages
While television and movie studios, music companies, print publishers, broadcasters, commercial printers and advertising agencies may be the obvious buyers of multi-media liability policies. However now anyone providing any form of electronic published material such as we see from Web Sites, Web Hosters and Software developers through to universities, online retailers and healthcare companies will have an exposure to these risks.
The ordinary General Liability coverage provides only actual physical damage or actual bodily injury. Nothing for the economic losses that can be suffered from media risks. A Multi-media liability cover is needed as well or if a Professional, cover broad enough in a Professional Indemnity policy which is extended to include defamation and breach of copyright.
These days this could mean nearly all companies can be exposed to these risks.