Will insurance cover Roman Polanski's unfinished movie?

By Eriq Gardner

At the time of his arrest, Roman Polanski was working on "The Ghost," a political thriller about a ghostwriter (Ewan McGregor) hired to write the memoirs of a recently unseated British prime minister (Pierce Brosnan). The film is based on a Robert Harris novel, which opens with the death of the first ghostwriter.

As Polanski finds himself in his own political intrigue — will he be extradited to the United States or will the French hold sway over the Swiss? — we now turn our attention to what might happen to "The Ghost."

Polanski's film is in limbo, with post-production work including music scoring and sound mixing not yet completed. Whether a ghost director will finish Polanski's work is worth enough ironic intrigue to give Robert Harris a sequel.

Film productions typically have essential element or "key man" insurance, compensating a business for the loss of a principal such as a leading actor or a star director. Would it cover Polanski's arrest? Would anybody going into business with Polanski factor in the risk of arrest and extradition?

After surveying a few industry attorneys, we found some disagreements here. Some believe that essential element insurance covers arrests. Others don't believe that's the case.

"The Ghost" doesn't yet have a U.S. distributor but it has distribution in many territories, including German and Polanski's home country of France. Summit Entertainment, a producer of the film, also likely secured a completion bond on the film. Regardless of whether "key man" insurance applies, the bond would guarantee the film being completed, perhaps with a replacement director. 

But what happens if a distributor insists on a Roman Polanski film?

"Usually a distributor isn't paying full price until the film is delivered to them," says Sue Bodine, special counsel at Cowan DeBaets Abrahams & Sheppard. "They don't have to accept a film not directed by Polanski. This would conceivably give them an out on the deal, maybe if the distributor is in bad financial health or doesn't like the movie."

That's not the only hang-up.

"I assume Roman has final cut and is pay-and-play," says Matt Galsor at Greenberg Glusker, adding that if Polanski's contract with Summit is vague, there could be a legal dispute over whether Polanski's final cut is unconditional or whether "force majeure" would allow someone else to take over. Galsor says Polanski's legal history makes his contract with Summit an interesting issue.

In other words, Summit could give Polanski's movie to someone else, but it would potentially be courting a lawsuit from distributors or from Polanski himself. And if there's confusion about whether "key man" insurance applies to the situation, Summit will have to proceed very carefully. We might not see "The Ghost" in theaters for a while.