With the growth of reality TV come the inevitable entertainment legal issues. I have received phone calls from attorneys in a variety of practice areas in cases where their clients have become involved with reality television projects. An estate attorney contacted me about her client, a hair salon owner, who was approached—out of the blue—by a TV producer. The producer asked whether she would be interested in participating in a show about her employees and their daily interactions with customers. Another example is the client of a personal injury attorney, who unwittingly found herself on a reality TV show. Upon returning to her parked car, she was surprised—not to mention annoyed—to find a parking ticket. Her feelings turned to shock when a camera crew, observing parking authority officials and the people they ticket for a reality show, approached and proceeded to record her explicit statements of anger upon discovering the ticket. Her attorney wanted to know what, if any, legal action she could take against the reality show for recording her without her consent.
As with any contract, when a client voluntarily engages with a network or production company, it is important to fully read and understand the terms. The show will make clear the importance of the agreement, especially because many participants may not want to hire an attorney because of either the cost or the concern that if the terms of the contract are becoming an issue, the network may choose to find another participant. Disclaimers often appear in capital letters and include language such as “I UNDERSTAND THIS IS AN IMPORTANT LEGAL DOCUMENT RELATING TO MY PARTICIPATION, AND BY SIGNING THIS DOCUMENT I AM WAIVING LEGAL RIGHTS….” These statements clarify the importance of the document in the event that the participant later claims they did not read or understand the document. The basis of the show is also a factor in the agreement. If the show involves the client as a contestant with a final winner, in addition to the contract involving the client’s participation, the show will have a “Contestant’s Rule Book” whereby the participant also agrees to follow the rules of play and understands how a final winner will be determined.
Needless to say, it is important to read the entire agreement. But in addition, there are some clauses that attorneys should pay particular attention to in the process of advising a client. “Fictionalization” of the client’s participation grants permission to the show to edit, delete, dub, and create any or all footage and materials. One sample clause states that the show “may reveal and/or relate information of or about me of a personal, private, intimate, surprising…or unfavorable nature that may be factual and/or fictional….” The agreement will also cover the participant’s social media engagement in order to ensure alignment of the show’s advertising and public relations campaign. This includes having participants sign over their social media accounts—even participants’ domain names. If a participant has not yet registered their full name as a domain, the agreement will grant the right to do so to the show, which will then own the name. Talent Hold Agreements may also be included; these state that the individual agrees to be involved in activities outside the taping of show, such as public appearances. Clients should understand the time commitment involved in these activities, and that many agreements may condition certain payments based on these appearances. The Talent Hold will also stipulate that participants must receive the show’s consent for a specified period of time before making public appearances that are not sponsored by the show. One show’s agreement dictated that participants may not run for public office for one year after taping the last episode.
It is essential to be aware of potential financial concerns. In particular, individuals who choose to participate as contestants must understand both their risk of penalties for violating the agreement and contestant’s rules, which may include millions of dollars in penalties and litigation costs. If the show features an individual person or business, it may also require a percentage of the participant’s future earnings.
One of the most popular and successful unscripted projects was the 2006 film Borat, starting comedian Sacha Baron Cohen as a fictional news personality. Borat accumulated numerous lawsuits by film participants who had signed consent forms—as well as from participants who had not. The one-page release stated in part: “Participant agrees not to bring any claim in connection with the Film or its production….” New York resident Jeffrey Lemerond appears in the trailer and 13 seconds in the film screaming “Go away!” after Cohen offered to give him a hug on a public street. Lemerond, who did not sign a release, was randomly chosen. He later sued for public ridicule, degradation, humiliation, and use of his image without consent. Judge Loretta Preska of the Southern District of New York dismissed the case, finding that the film portrayed “newsworthy events or matters of public interest” that include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”
The first amendment has also been used successfully as a defense for individuals who do not provide their consent. The show Female Forces follows female police officers in Naperville, Illinois. While recording an arrest for driving with expired license plates, an officer searched a car and discovered marijuana. The show asked the driver to sign a consent form, which she repeatedly refused. The driver alleged that her constitutional rights to privacy were violated when the show “’staged, sensationalized and/or enhanced’ her arrest and use of her identity for commercial purposes without her consent.” The production company defended with the use of free speech. The judge agreed, stating that the show’s depiction of the arrest and its surrounding circumstances “conveyed truthful information on matters of public concern protected by the First Amendment,” and concluded that “[t]he status of Female Forces as an entertainment program, as opposed to a pure news broadcast, does not alter the First Amendment analysis.”
Balancing the contract
Because most reality agreements are non-negotiable, the client’s decision to participate is a matter of balance—what the client will gain vs. the legal rights they must give up. I recall the example of an individual who was offered a chance to participate in a fitness/lifestyle show. In return for a 6-month commitment, the benefits offered by the show included daily 1-hour personal training sessions; in-home preparation of all meals for her and her family by a personal chef, paid for by the network; a fee for her participation; and a new wardrobe following her weight loss. She felt the trade-off was well worth it when she considered the benefits.
Entertainment opportunities are everywhere. You never know when or how they may make their way into your practice, no matter your area of specialty. As with any practice area, it is best to consult with an attorney who is experienced in this field if issues arise for your clients.