Written by Sami Fenton
This blog post previews my Note topic, The Harsh Reality of Reality Television Contracts, which explores whether principles of contract law and labor law can provide protection to reality television participants when things go wrong.
On Sunday, June 4, 2017, the fourth season of Bachelor in Paradise began taping in Mexico. However, the reality was no paradise. News sources reported that a sexual encounter between a male and female contestant occurred while the cameras were rolling in which the female was too drunk to consent. Although production continued Monday, a producer filed a third-party complaint for sexual misconduct. On Tuesday, production stopped, the contestants were placed on lockdown, and an internal investigation began.
On Sunday, June 11, the contestants and crew were sent home and stories of the investigation and the production suspension broke. Amid the media frenzy, Warner Bros. released the following statement to the public:
“We have become aware of allegations of misconduct on the set of ‘Bachelor in Paradise’ in Mexico. We have suspended production and we are conducting a thorough investigation of these allegations. Once the investigation is complete, we will take appropriate responsive action.”
On Tuesday, June 20, Warner Bros. announced that its internal investigation was complete, the investigation concluded no misconduct had occurred, and production would resume. The studio also announced that the footage of the encounter would not appear on the show.
This scandal left many wondering what would have happened if the investigators determined that misconduct had occurred. Since reality television contracts typically include extensive liability waivers as well as nondisclosure agreements and arbitration agreements, the contracts are designed to protect production companies from liability. For instance, during the Bachelor in Paradise scandal, CNN obtained a copy of the contract contestants must sign before appearing on the show. According to one provision, contestants must agree that the producers are not liable for almost anything that happens to them during filming, including injuries, emotional trauma, contracting an STD, and being subjected to “unwelcome/unlawful contact or other interaction among participants.”
But should these provisions be enforced when illegal conduct occurs on set? To answer this question, my Note looks at the unique aspects of reality television programming, the labor status of reality television participants, and the contract formation process to determine whether a court would (and should) uphold these contracts as enforceable when contestants are harmed on set.
While audiences are drawn to the unique format of reality television, this format also provides distinct advantages to production companies. Following the Writers Guild of America strikes in 1988 and 2007–08, the unscripted nature of reality shows offered the television industry a way to avoid the consequences of strikes, because networks could hire non-professional talent at a fraction of the cost without being subject to the constraints of union protections. In addition, reality television allows networks and producers to save a significant amount of money on production costs by hiring unskilled and non-unionized labor as the “real” stars of their shows.
However, as reality television continues to stand at the center of the television industry, entertainment laws have not adapted to acknowledge the significance of the way it treats its participants from a legal standpoint. For instance, because reality television assumes that its participants are ordinary people rather than professional actors and performers, reality participants are not members of actors’ unions or guilds. In addition, since no federal or state legislation or jurisprudence clearly categorizes the nature of the work relationship between reality television contestants and their employers, there is no clear answer as to whether federal and state labor laws apply to this group of people. As a result, networks and producers can use this ambiguity to their advantage because they are able to hire cheap and expendable labor.
Furthermore, the contract negotiation process gives networks and producers inequitable bargaining power. The “ordinary” stars of reality television lack industry knowledge, and are often pressured into signing contracts that are exploitative and release producers from all liability. The scholars who have analyzed reality television contracts have questioned whether the doctrine of unconscionability can be used to find these contracts unenforceable. Such scholars have found that although these contracts seem unfair, they are not unconscionable and should be enforced.
As an alternative to the unconscionability doctrine, my Note turns to the public policy doctrine as a potential challenge to the enforceability of these extensive liability waivers. Under California Civil Code Section 1667, a contract is unlawful if it is contrary to public policy. One could argue that it is against public policy for production companies to waive liability when illegal conduct occurs on set, and the company was aware and did nothing to stop it. Moreover, claims for criminal misconduct or gross negligence cannot be released, no matter how broad the waiver language. “If the contract requires you to release any claims you have that you were sexually assaulted, which is a crime, then the contract may or may not be enforceable under the public policy of the state of California,” attorney Josh Schiller told CNN. “Law enforcement could get involved and bring charges . . . would we want to enforce a contract that no one would be liable if they were filmed being sexually assaulted? That would create a real problem.”
While it is unclear whether a court would uphold contracts that absolve production companies of liability when contestants are harmed, one thing is certain: reality television is far from paradise for its contestants.