When Carrie Fisher, famous for playing the role of Princess Leia in the Star Wars films, died on 27 December 2016 following a sudden heart attack, the world cursed the year 2016 for taking yet another celebrity from this world. Her death was sudden and unexpected, but not totally uncontemplated by some: Disney, who owns the Star Wars franchise, is said to have taken out a number of insurance policies to protect its interests in the existing and future productions of the Star Wars films.
The losses that can arise from the death or injury of a leading actor/actress in a high-budget film can be significant, as considerable expenses may be incurred in ensuring the continuity of the production. This is particularly so if (like Star Wars) future sequels are planned. In such circumstances, a production company would need to consider and bear the cost of, for example, hiring body-doubles or inserting digital images of the star, or otherwise re-writing scenes or re-casting the role.
A comprehensive film, video and TV production package insurance is designed to provide cover for such additional costs associated with the death, accident or illness of key cast and/or crew members who are specifically named under the policy, in addition to other events which could jeopardise the production of the film, such as loss of technical equipment and property damage caused during production.
The insurance could also provide cover for third party liability. Where, for example, a lead cast member becomes unable to continue filming due to death or injury, a production company may decide to make use of his/her digital image to keep the star's on-screen character alive. Whilst such a decision could assist the franchise to continue and, in some cases, prove to be an efficient loss-mitigation effort on the part of the production company, there are a number of pitfalls. For example, in our experience the individual's estate may have a potential claim against the company for infringement of the star's image rights unless precisely the correct rights were negotiated at the outset.
Whether there is such a cause of action and, if so, on what legal basis depends on the applicable law. For example, in a widely reported US case, the heirs of actor Humphrey Bogart issued a claim against Burberry for infringement of the trade mark and personality rights in Bogart’s name and image. Although such personality rights (by which a celebrity could seek to protect his/her likeness) are well-established under US law, a standalone right of personality is not recognised in the UK. Therefore a claim against the production company in the UK might be brought on a different basis, such as passing off, trademark infringement, data protection, breach of confidence or advertising regulations. Regardless of the legal basis, however, there is no question that such a suit (if and when it materialises) will be a costly expense for a production company, which would in turn seek to recover such costs under any responsive insurance.
In addition, there may be different issues to consider if the relevant death or injury occurs at an earlier stage of the production. An acquisition and development insurance might be impacted where a project is developed specifically with a particular lead cast in mind in discussion with them, and the use of those ideas upon the death of one of those stars becomes an issue with the estate.
Once production is completed, attention turns to a distribution company where there may be potential claims regarding the content of the production made against the distribution company, again potentially raised by an estate if they consider the deceased has been inappropriately portrayed, for example. In our experience media liability insurance tends to respond to protect distribution companies and assist in the defence of such actions.
The death of a star is devastating and leaves a big hole in the hearts of many. A comprehensive film, video and TV production package insurance, coupled with other forms of insurance to cover different phases of a production, could go some way to plugging the financial hole for the insured. For insurers, it is important to consider the various risks a policy may respond to in the course of the insured's efforts to mitigate its loss and in particular consider verifying the contractual permissions obtained when reviewing contingency plans.