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Fair Use Procedure

by | Oct 9, 2020

Fair Use Procedure
Where necessary and legally defensible, you may seek to rely on fair use in connection with the inclusion of third-party copyrighted materials in the Program. All proposed fair use is subject to Discovery’s approval in each instance and must align with the following procedure:

    1. Before proceeding with an approval request, ensure that you have made the appropriate disclosure on your E&O coverage application. To rely on fair use for the Program, you will need to have disclosed your intention to do so on your initial coverage application. If you initially failed to make this disclosure in the coverage application, your E&O policy does not cover fair use under any circumstance; to proceed to Step #2, you must correct your application[1].  Once you have disclosed in your coverage application that your production will rely on fair use, your E&O policy should contain a clause under which Hiscox may cover fair use if it is satisfied with the risk level after assessing your formal fair use legal opinion letter (See Step #3).
    2. For each proposed use of unlicensed materials as fair use, have your production counsel send your BLA Executive a detailed email specifying the legal basis for asserting a fair use defense under the circumstances (including, without limitation, an analysis of the specific fair use factors at-issue) and explaining why such a defense is necessary here (e.g., outline any unsuccessful attempts to seek the copyright owner’s permission). Note that Discovery’s approval of proposed fair use in no way limits Producer’s obligations to indemnify Discovery in the event of a claim or alleged claim with respect to the materials at-issue.
    3. Once you have obtained approval from your BLA Executive in connection with Step #2, you will need to have your production counsel prepare and send a formal fair use legal opinion letter to Hiscox (one letter for the entire season may be acceptable if the airing schedule permits). This letter (i) must affirm that your production counsel has vetted the materials and determined that the materials meet the fair use standard, and (ii) if requested by Hiscox, must be accompanied by a clip log. The letter will help the underwriter make an assessment about the likelihood of a claim being filed by the copyright owner in connection with the materials at-issue.
    4. Finally, once Hiscox informs you that the fair use exclusion has been lifted for the specific materials at-issue, you must (i) promptly[2] obtain from Hiscox and submit to Discovery via the Producer’s Portal an updated certificate of insurance evidencing the lifting of the exclusion, and (ii) promptly submit a Rights Waiver Request via the Producer’s Portal detailing restrictions on use of the materials, if any (it is common that fair use materials will not be available for use in promotion outside the Program, for example). 


[1] Consequently, if there is even a small chance that your production will invoke a fair use defense, it is advisable that when initially completing your coverage application, you answer in the affirmative in response to the question regarding whether your production will rely on fair use. Otherwise, if you ultimately do rely on fair use, your application will require correcting.   

[2] The updated certificate should be submitted via the Producer’s Portal as soon as possible, but in no event later than the earlier to occur of: (i) delivery of the applicable master, or (ii) the airing of the first episode within the applicable season order.