When I was growing up, about half of my friends — most of whom had no appreciable talent for creative writing — at one point or another wanted to be screenwriters. Well, “wanting to be screenwriters” might be overstating it. I should say that, at one point in high school, each of these people was four hours into a night of hard partying when they had what seemed like the greatest movie idea ever. Unfortunately for my friends, screenwriting actually takes some talent, and these half-baked notions typically resulted in two and a half pages of drivel, long since abandoned in the darkest corners of the hard drive of an HP Pavilion computer from 1999, currently collecting dust in their parents’ garage.
Enter reality television. Suddenly, creating a TV show only takes the 2 a.m. epiphany — no actual writing (or talent or dignity) is necessary. And sure enough, a childhood friend recently called me for advice about a reality show he is pitching. So what happens if the show gains traction and I find myself representing the producer of a successful reality program? A form contestant agreement for the CBS show Survivor (which was recently published by RealityBlurred.com) offers an interesting glimpse into the legal side of reality television. Yes, I said it — a 32 page agreement is actually an interesting read.
For a reality show producer, keeping the show’s results confidential is obviously critical. TheSurvivor agreement imposes liquidated damages of $5 million for each violation of the confidentiality provisions set forth in the agreement. If you’ve ever wondered why reality programs are rarely spoiled, this is the reason — with $5 million on the line, even grandma has to wait. Law Law Land editor Ken Basin can attest — he did not tell a soul after becoming theonly person to ever miss the million-dollar question on Who Wants to be a Millionaire, allowing all of us to enjoy the suspense of watching him lose in spectacular fashion. [Ed. Note: I did not put Mr. Gafni up to writing this.] Did I mention that he could have walked away with $500,000? [Ed. Note: No, Aaron you hadn’t. Thanks for that, though.] Moving on.
A “liquidated damages” provision — by which a party agrees to pay a pre-determined amount as damages if it ever breaches a given contract or contractual provision — is enforceable in California so long as it constitutes a reasonable attempt to predict the actual damages which would be suffered as a result of the violation. In the case of Survivor, $5 million seems to be a fair estimate of the damages CBS would suffer if a castaway gave away the results — it almost seems low, considering the number of viewers that the show would likely lose if the results were leaked to the general public. In the case of my friend’s fledgling show, a “buy me a Big Mac and fries” liquidated damages provision might be more appropriate, at least for now.
Survivor contestants also agree not to rig the outcome of the show, which includes collusion to share prize money; not to defame CBS or the show’s producer; to participate in psychological exams and lie detector tests, the results of which can be broadcast on the show; that they may be “fictionalized” (though I still maintain that Omarosa is pure evil); and that CBS can register a domain in the name of the contestant and use it in perpetuity. Have I mentioned that the agreement is extremely pro-studio?
Contestants further waive the right to sue CBS for just about anything that could possibly happen during filming. Many of these waivers are remarkably specific to the types of problems that would only occur on a show like Survivor — backcountry natural disasters, lack of adequate or accessible medical care in remote locations, exposure to disease (well, that last one is probably in most reality show contestant agreements…Rock of Love fans know what I’m talking about). Even family members are required to sign. And these waiver provisions, of course, often give rise to all kinds of legal controversies of their own.
Which leads me to my final point: while reality shows are often derided for their lack of creativity and cookie cutter premises, the legal side of reality programming ironically requires an uncommon level of creativity, at least as far as lawyers are concerned. The various locations and premises and the physical activities involved in competition-based programs create a number of variables, each of which has to be considered and accounted for in agreements with contestants. Which means that if my friend hires me to write his show’s contestant contracts, I am going to have to anticipate every stupid thing my friend’s show, or the contestants thereon, could possibly do, and contract around it.
I guess it’s time to set some reality programming on the DVR…I’m going to have to study up.a