The harsh legal realities of reality TV – part 2

Sandra Richmond is a partner in the Toronto law firm of McMillan Binch LLP and a member of the firm's KNOWlaw Group. This article was prepared with the

Sandra Richmond is a partner in the Toronto law firm of McMillan Binch LLP and a member of the firm’s KNOWlaw Group. This article was prepared with the

assistance of Paul Jachymek.

In our last column (March 17, p. 15), we talked about legal issues relating to the format and financing of reality TV shows. In this column we look at some of the legal documentation you’ll need – and how releases may help provide some protection.

As lifestyle television and documentary producers know, the fact that your reality TV show consists of filming people who aren’t professional actors in unscripted situations doesn’t mean there’ll be fewer agreements to worry about.

Just how contract-intensive your production is will depend to some extent on the nature of the show.

For example, shows that feature aspiring musicians, singers, models or actors competing for the deal that will give them their lucky break may require numerous third-party contracts – with record companies, songwriters, music publishers, management agencies, studios, modeling agencies, merchandising agents and so on.

Releases

Even if ‘all’ you’re doing is filming participants in a constructed setting (like a house or a desert island contest), you’ll want releases from each of them. These releases will allow you to film the participants and use the footage, but will also usually contain an explicit waiver of any potential defamation, privacy, publicity or copyright claims.

The fact that the participants have volunteered to participate in the show doesn’t mean you can do without releases. Broadcasters and distributors usually require producers to obtain a clean errors and omissions insurance policy, and insurers will often insist that you obtain releases as a condition of granting full coverage.

(A ‘clean’ policy means that your premium and deductible are standard and that there are no exclusions. If your insurer requires a higher premium or deductible because of an increased risk of claims, you’ll have to convince your broadcasters and distributors to accept that.)

Insurers may also insist that you obtain releases from non-participants (e.g., audience members, people in the vicinity of recording) if they appear recognizably on-screen. Signs around an area that filming is taking place may be sufficient notice for insurance purposes, but check with your insurance company first.

And you’ll need to be aware of the special considerations required when you’re asking for releases from minors.

Protection

Whether or not you need them to comply with errors and omissions insurance, releases may be able to protect you from participants who change their minds.

In one Canadian case, two unemployed workers who had authorized a producer to record their participation in a conference on employment and unemployment tried to withdraw their permission after the sessions had been completed and the production finished.

But when they sued for damages for mental suffering, the court refused to grant their request for an interim injunction, which would have prevented the film from being screened until the trial was finished.

The court emphasized that the participants had given express written authorization to portray them in both documentary and fictionalized works connected with the conference. This consent meant they could not prevent the producer from doing what they had expressly said the producer could do.

Limitations

Releases can’t do everything, though. For example, a participant’s agreement not to sue for what is said about him or her won’t protect you if the participant says something defamatory about a non-participant. In that case, additional releases – or judicious edits – will be needed.

And even if participants sign releases allowing footage of them to be televised, and even though they know (or should know) that the people who edit the footage will be looking for the comic, the bizarre, the outrageous, and the controversial to boost ratings, it’s not clear producers then have free rein to edit footage to create a reality radically different from what was recorded.

A participant on the BBC show Castaway was paid £16,000 – and given an apology in court – to settle a libel action against the BBC and the producer. The contestant claimed some heavily edited footage suggested he was aggressive and had thrown a chair at another participant – an incident the producer apparently fabricated to boost ratings.

Surveillance television

Even more problematic for insurers – and producers and broadcasters – are ‘surveillance television’ shows that use hidden cameras. In these cases, releases are not obtained in advance. So, can you use the footage without getting a release after the fact?

Recently, a Los Angeles woman who witnessed a staged ‘alien’ attack on her companions brought a lawsuit against the makers of Scare Tactics, the U.S. reality TV show that staged the incident.

The woman, who was filmed by secret cameras as she tried to escape the ‘aliens,’ claims she has been hospitalized because of the incident. Newspapers report she is asking for an injunction to stop the producers from using the footage of her and to stop the producers from ‘surreptitiously recording the traumatised reactions of any other persons in the future.’

Stay tuned – if this case goes to trial, the court’s response to both those requests could provide us with useful guidance.

Lawsuits

These aren’t the only reality TV legal issues. Just as there seem to be weekly announcements about new reality shows, there seem to be weekly announcements about scandals and new or potential lawsuits.

Many of the issues raised focus on fairly straightforward legal issues, like damages for breach of contract, defamation and copyright infringement.

Other issues raised – for example, that producers need to screen participants better to ensure the safety of their fellow participants and that participants need psychological help after the intense public scrutiny, comment and ‘humiliation’ of losing – may not have legal solutions.

They do, however, emphasize that reality TV is not necessarily as easy as it looks – and that the harsh reality is that you need to protect yourself – in writing – as much as you can.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)

-www.mcbinch.com