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ATTORNEY ADVERTISING NOTICE. The contents of this article, and the accompanying articles of this five-article set, are: (i) attorney advertisements, (ii) designed and provided for general informational purposes only, and (iii) are not intended to provide, and should not be construed as providing, legal advice of any sort or for any purpose. Neither Dunlap Bennett & Ludwig, PLLC, nor Kurt R. Klaus, Esq., are responsible for any action or failure to act in reliance upon information presented in this article or any accompanying articles. No action, or decision not to act, should be made in reliance on any of the information contained in this article or in any of the accompanying articles.  The choice of a qualified lawyer or other professional is an important decision and should not be based solely upon advertisements.  Prior results that may be mentioned in this article, or in accompanying articles, do not guarantee same or similar outcomes.

Introduction:

As suggested in the first article of this five-part series, … competition across brands has neither decreased nor decelerated.  Digital platform short videos are often key components of contemporary brand activations and are considered indispensable.  However, fueling social media outlets with sustained volumes of branded visual content isn’t cheap, which is causing brands to increasingly organically handle social media content production and placement in-house.  Unfortunately, due to no fault of their own, personnel of in-house marketing departments and agencies are not always well suited to readily identify and handle business and legal affairs issues related to risk mitigation in the context of media content production and publication.  The present article is the second in the aforementioned series and concerns audiovisual production risk management and mitigation.

About the Author:

Kurt R. Klaus, Esq., is a Partner at the law firm of Dunlap Bennett & Ludwig, PLLC, where he heads the Media/Entertainment Law section.  Kurt regularly functions as lead attorney on domestic and international transactions involving many of the world’s leading media companies and provides creative and practical guidance with related legal and business strategies.  He has been legal counsel to top world brand corporate marketing and social media departments, television networks, content production companies, musicians, and music composers.  Prior to practicing law, Kurt produced television commercials, was an executive in two mid-sized media production and distribution companies, and earned a Master of Science degree in Communications (Advertising Emphasis).  [email protected], www.DBLLawyers.com.

• Audiovisual Production Risk Management:

Today’s brand activations publish ever more video assets direct to digital platforms.  To control related costs, marketers increasingly turn to “small-house” producers (e.g., direct to digital production companies that are less expensive alternatives to full-service production companies), influencers, and in-house produced content to handle video content supply requirements.  While this shift in methodologies supports agile marketing opportunities, there likewise arise concerns:  managing the risks associated with perhaps hastily prepared or relatively unsophisticated audiovisual production work and publishing.  As we’ll see, things can get intricate.

Traditionally, in-house marketing teams haven’t needed to focus that much on risk management relative to video productions. But in today’s ever-evolving scheme of things, such is no longer the case. When considering audiovisual production and publication, risks take many forms including financial, business interruption, and reputational exposures. Some of the areas through which risk should be managed include: copyrights, trademarks, rights of publicity, rights of privacy, personal injury, breach of contract, FTC compliance, compliance with laws of states, and corporate liability.

With all this in mind, educating marketing personnel AND production companies on how to anticipate and recognize applicable risks, and then how to timely and effectively address such risks, is a very valuable exposure reduction practice.  Proper insurance lines also play an important role in risk management relative to audiovisual content productions and publications.  Typical insurance lines include: general liability, media/producer’s errors and omissions, non-owned and rented vehicles, specialty insurance (watercraft, aircraft, pyrotechnics, etc.) audiovisual production insurance, renter’s insurance, and the like. While it is customary to require outside producers and production companies to retain such insurance products (be sure to verify minimums and subrogation waivers for such coverages), now marketers and agencies should also have an insurance portfolio that adequately covers their individual potential exposures.

It’s important to note that media/producer’s errors and omissions insurance is NOT a “Get Out of Jail Free” card. For example, if rights aren’t cleared for one or more elements of a video and such elements aren’t properly and timely presented to the insurance carrier for coverage review (or, if presented, coverage is ultimately denied), then claims made relative to the use, copying, distribution, display, and performance of such elements may NOT be covered. If successful, such claims could result in judgments or settlements easily reaching into hundreds of thousands, if not millions of dollars, on top of litigation costs.

Beyond insurance, another tactic used to mitigate risk is so-called “risk shifting.”  Conceptually, this maneuver may be accomplished through written obligations, warranties, and indemnification provisions as part of a contract, (e.g., a media content production services engagement agreement).  However, even with such provisions solidly in place there is no guarantee that should it become necessary, the indemnitor (i.e., the party accepting the obligation to indemnify) will have the financial means to wholly support or fulfill its indemnification obligations.  The result, then, could be that the marketer engaging the service provider must satisfy the indemnitor’s obligations with little or no hope of recovering such costs.  For this reason (and other reasons), it is important to properly research, structure, and administer media production services engagements.

Properly structuring media content production operations is a very doable, yet potentially complex, undertaking that involves a fair number of diverse risks.  If you are involved in content production and distribution and have questions concerning any of the information provided in this advertisement message, please contact Kurt R. Klaus, Esq., at Dunlap, Bennett & Ludwig.

1. Kurt R. Klaus, Esq., Dunlap Bennett & Ludwig, PLLC, [email protected], www.DBLLawyers.com.

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