Covering Your (Jack)Ass: Lessons on the Reality Liability Waiver

With 4 out of 10 of the top rated TV shows of 2009 being considered “reality” programming, the emergence of “reality” films like Borat ($261 million in world wide box office) and the Jackass movies (over $164 million, collectively), and a certain dowdy Scottish church singer riding a British talent show to 93 million YouTube page views and nearly 9 freakin’ million albums sold, the staying power and lucrativeness of “reality” is undeniable.

Despite its financial success, reality production has always been viewed as the less attractive, less educated stepchild of the entertainment family. And, like other children who’ve experienced the sting caused by not being their parents’ “favorite,” reality productions have had their fair share of binge drinking-induced bar fights and run-ins with the law. Since the early 2000s, the courts have seen an increasing number of lawsuits against reality production companies and studios, brought by both cast members and the mere civilians who have dared cross their paths. The suits have ranged from the expected rights of publicity and defamation claims, to more serious and violent claims, such as assault and battery.

Most people in reality production are already aware of the value of having reality on camera “talent” (I cannot emphasize how loosely I use that term) sign consent/liability waivers. If you are one of the two people in reality production that do not force any and everyone who might appear on screen to sign such a waiver: first, hang your head in shame, and second, start. Explicit, informed waiver and/or consent is the first line of defense against the inevitable lawsuit. However, standard consent agreements, with their exhaustive rights grants and expansive liability waivers, may still be open to attack by disgruntled individuals who are ultimately unhappy with the way they were portrayed on camera.

As producers of MTV’s original reality guilty pleasure, The Real World, are now learning, just because someone signs a “consent” agreement, does not necessarily mean he or she has provided a valid consent. It’s blackletter law that a party must have the requisite mental capacity in order to form a binding contract. It is precisely this doctrine that one individual, who appeared in MTV’s 2010 airing of The Real World: DC, is using to claim that her consent to MTV’s liability waiver was invalid. Golzar Amirmotazedi, who appeared on one episode of the show, claims that she was too drunk to provide valid consent “to Defendant portraying her in a false light or disclosing facts about her,” and is suing producers for invasion of privacy, false light, disclosure of private facts and intentional and negligent infliction of emotional distress.

Sure enough, the law has often accepted that intoxication may cause a party to be incapable of contracting intelligently and thus provide a defense to enforcement of the contract. And with so many reality productions incorporating alcohol consumption into their story lines (we’ve all seen the “drunk one” on episodes of The Bachelor and I’m pretty sure those aren’t virgin cocktails the cast of The Hills is always drinking), producers would be wise to get those waivers signed either before the imbibing begins or once the previous night’s social lubricant has left the system (a “release execution of shame?”). For shows like MTV’s The Real Worldand Jersey Shore, which seem to rely on alcohol to fuel plot lines, requiring individuals to document time of signature on waivers may provide additional means of proving capacity. Such evidence might come in handy should a filmed participant later realize that maybe a national airing of his or her walk of shame from the Jersey Shore house wasn’t the best way to impress the boss and friends.

In the many lawsuits filed surrounding Sacha Baron Cohen’s film, Borat, plaintiffs attempted to circumvent the production’s liability waiver by claiming they had been fraudulently induced to enter into those agreements. Ultimately, the courts did not buy this argument, mainly because of the strength and clarity of the waiver language used. However, with Cohen’s newest “reality” film, Bruno, Cohen created elaborate shell corporations and websites to better dupe on-camera participants as to the authenticity of the “documentary” allegedly being made. And as the Hollywood Reporter’s Eriq Gardner hypothesizedBruno’s heightened emphasis on discreetlysecuring participant waivers could have the undesired effect of weakening the strength of those waivers, because would-be plaintiffs can argue that their releases were obtained under false pretenses.

But those are just the claims from people who are unhappy about looking like buffoons before an international audience. MTV’s latest reality phenomenon, Jersey Shore, has also generated a disproportionate number of lawsuits and controversies surrounding the cast members’ tendency to engage in physical altercations with the club-goers they encounter on their nightly adventures on the boardwalk (which surely has nothing to do with the Jersey Shore house’s apparently incredibly well-stocked bar). So far, two lawsuits have been filed and a third has been threatened surrounding separate instances in which three different cast members are alleged to have assaulted various individuals while filming the show. The two lawsuits filed accuse producers of racketeering by their having provoked fights which the show then profited from. Although several of the plaintiffs have admitted to signing waivers, it is unclear whether those waivers addressed liability of producers for intentional torts, such as assault and battery, committed by cast members.

Absent a contract, these sorts of liability questions would turn on whether cast members are considered agents or independent contractors of producers, and if deemed agents, whether the intentional torts were committed within the scope of the agency or employment. Normally, an employer will not be liable for an “intentional tort” — such as, say, a savage beating — committed by an employee for the employee’s own, independent purposes (“I hit him because his tan was more orange than mine”). However, the Jersey Shore plaintiffs have savvily accused producers of actually encouraging cast members to engage in physical violence to increase show ratings — essentially arguing that bar fights were in the job description (“I hit him because the producers offered me another round of Jäegerbombs and a pay raise for Season 2”). As always, there’s a potential way for producers to try to contract around this — for example, including in agreements with cast members explicit language disavowing any intention to encourage altercations (no matter what that bad man might say about your beloved grandmama’s lasagna!). But I’ll leave the question of what the need for such a provision says about the state of popular culture — or society in general, for that matter — for another day.

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