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Pitfalls for Contestants in Reality Competition Shows

TASA ID: 1232

Program Description:

On October 16, 2018 at 2:00 p.m. (ET), The TASA Group, in conjunction with entertainment attorneys Bernard Resnick and Sally Mattison presented a free, one-hour interactive webinar presentation, Pitfalls for Contestants in Reality Competition Shows, for all legal professionals.

During this presentation, Mr. Resnick and Ms. Mattison discussed:

  • Background
  • Common TV production company requests- business terms
  • Treatment of contestants during/after production
  • Other fine print issues
  • Negotiability
  • Common sense considerations for contestants and their representatives

About the Presenters:

Bernard Resnick, Esq. is an entertainment attorney who has worked in the entertainment industry for over 30 years. His clients have included recording artists, songwriters, record producers, agents, managers, filmmakers, financiers, professional athletes and others. Mr. Resnick is a lecturer in Law at the Villanova University Charles Widger School of Law. Mr. Resnick serves on the Recording Academy’s national Grammy Awards Hall of  Fame committee. Mr. Resnick frequently serves as an expert witness in entertainment-related lawsuits. Besides being a lawyer and expert witness, Mr. Resnick is a musician, songwriter, record producer and music publisher.

Priscilla J. (Sally) Mattison is Of Counsel to the firm Bernard M. Resnick, Esq. P.C. Her clients have included recording artists, songwriters, record producers, record labels, music publishers, managers, booking agencies, filmmakers and screenwriters. A frequent speaker at entertainment industry and legal education events, she has also written numerous articles for trade publications, including books published by the International Association of Entertainment Lawyers. In addition to IAEL, she belongs to The Recording Academy, New York Women in Film & Television, and Philadelphia Women in Film & Television, and holds both writer and publisher memberships in BMI.



Rochelle: Good afternoon and welcome to today's presentation, "Pitfalls for Contestants in Reality Competition Shows." The information presented by the expert is not to use as legal advice and does not indicate any working relationship with the expert. All materials obtained from this presentation are merely for educational purposes, and should not be used in a court of law, [inaudible 00:00:25] the expert's consent i.e. a business relationship where she or he is hired for your particular case. 

In today's webinar, Mr. Resnick and Ms. Madison will discuss Background, common TV production company requests-business term, treatment of contestants during/after production, other fine print issues, negotiability, common sense considerations for contestants, and their representative. To give you a little background about our presenters, Bernard Resnick, Esquire, is an entertainment attorney who has worked in the entertainment industry for over 30 years. His clients have included recording artists, songwriters, record producers, agents, managers, filmmakers, and financiers, professional athletes and others. 

Mr. Resnick is a lecturer in the law at Villanova University, Charles Widger School of law. Mr. Resnick serves on the Recording Academy's national Grammy Awards Hall of Fame committee. Mr. Resnick frequently serves as an expert witness in entertainment-related lawsuits. Besides family lawyer, an expert witness, Mr. Resnick is a musician, songwriter, record producer, and music publisher. 

Priscilla Sally Mattison is of Counsel to the firm Bernard M. Resnick, Esq., PC. Her clients have included recording artists, songwriters, record producers, record labels, music publishers, managers, booking agencies, filmmakers, and screenwriters. A frequent speaker at entertainment industry and legal educational events. She has also written numerous articles for trade publications, including books published by the International Association of Entertainment Lawyers. In addition to IAEL, she belongs to The Recording Academy, New York Women in Film &Television;, and Philadelphia Women in Film &Television; and holds both writer and publisher membership in BMI. 

Attendees who require a password, the code for today is "Competition." During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you're applying for CLE credit, you must logon to your computer as yourself, and stay for the full 60 minutes. You are also required to complete the survey at the end of the program. Please note the CLE credit cannot be given to those watching together. Only a single computer. Tomorrow morning, we will send out an email with a link to the archived recording of the webinar. This slide can be downloaded from the resource list at the bottom of your screen. Thank you all for attending today. And Bernard and Sally, the presentation is now turned over to you.

Sally: Good afternoon everyone. This is Sally Mattison, and we're glad you're here with us today. We're going to start right in talking about the background of Reality Competition TV Shows. So it's no secret that reality shows, including competition shows, have proliferated over the last several years. Not only dancing and cooking and musical performance shows like we've all seen, but all kinds of things like competition shows for hairstyling, comedians, child performers, drag queen, fashion photographers, aspiring politicians, sportscasters, tattoo artists, game testers, just to name a few. 

And just in the last couple of weeks, three more have been announced, including LA Reed will be working on a new music competition show that aims to build the next major music act called, "Take the Lead." Netflix will be working on a new show coming from England. It's a social media competition series called "The Circle.'' 

NBC has just announced it's going to be doing a new show called, "Song Land," which is a music competition reality show that focuses on songwriting rather than musical performances, and two of the executive producers of that show are Adam Levine of Maroon 5 and Dave Stewart from the Eurythmics. So as we know they're prevalent, they're everywhere, and we think that many of you have probably gotten calls from prospective or existing clients who are interested in going on to some show or were offered the chance to audition for a show. So when you get that call, what should you do next?

Do you respond to the considerations and potential pitfalls for clients based on our experience? The types of shows that we're going to be talking about are not necessarily ones on that opening slide. We're not going to be naming names of particular shows as we go along. Usually, we're on the talent side of these negotiations, rather than the production company side. Although we've had eight or 10 clients who wanted to own a produce or show, of those, two or three have something in development, and one of them may actually get made. But in general, when we're talking about shows we've been involved with, we've been on the talent side. 

So we're basing our talk on experience with two business competition shows, five music shows, one cooking show, two dancing shows, one what we call general entertainment competition show, and we're also going to be drawing on experience with about 11 different noncompetition shows that were reality shows where legal issues are relevant. 

So what have our clients' experiences been like? First of all, some of them call for a consultation about possibly trying out for a show, and they decide not to go forward afterwards. Some clients send in a contract from a show for us to review, and then they decide not to go through with the audition. Some clients have us review the initial contract, and then they go ahead and audition, but they don't get on the show. And finally, some clients make it past the audition, and then we look at the full-blown contract to be on the show.

So of all those clients, about 75% or 80% of them we talk out of auditioning. And if a few that audition, a handful are invited to be on the show. So maybe 5% of the initial calls end up with us reviewing the full-blown contract. One of our clients did win a show, and every other client who went on the show did not win, and usually very quickly did not win.

So we're about negotiability. Most major competition shows won't make changes in their contracts. You're lucky if you get 10% of your requested changes. It also depends on how badly the show wants your client. One major music competition show did make a bunch of requested changes, including acknowledging that our client had already made a number of her own albums, and wrote her own music. So they acknowledged that they weren't going to have any participation in that preexisting music. 

One other music competition show made a change in a provision about out of context advertising uses, meaning they agreed if an ad for their show feature our client's voice, they would show our clients face, and not somebody else's face, or vice versa. In contrast, noncompetition shows are becoming more willing to engage in bonafide negotiation.

Bernard: Now one of the largest musical competition, reality shows did have a form contract that was, in my opinion, quite unfair to the contestants. And then after a few seasons, they were having a lot of success in the program, and they did a sort of a substantial revamp of that contract to make the deal a little bit more palatable. They were having some difficulty getting good quality artists because none of the lawyers reviewed it, or that excited about the deal that was offered. And other of these musical competition shows are stricter or less strict. It depends from show to show. Next, we'd like to talk about some of the common things that the production company is going to request in how they present the deal to your client.

First thing that you have to be concerned about, and a lot of this is just sort of spotting the issues and, you know, you as a lawyer may or not have experience in representing this kind of person, but your initial job, you don't need to be an entertainment lawyer like we are in order to do the initial intake. And, primarily, the thing you want to look for first is are there a whole series of contracts, or whole series of rights that are involved in just this one deal? It could be for cooking or a dance or business pitch kind of show.

Generally speaking, the television company, the production company will give you a two-part contract where you have the initial part for your client to go on the show, and then the second contract if they win. And that's where you need to really be looking at it and scrutinizing it very carefully. Because they usually give the contestants very little time to review this, and it's all done last minute when they're getting very close to going on the air.

Sally: So there are a number of potential problems with these multiple contracts like in a situation of a music client where there might be multiple agreements for that one appearance, or a multiple rights agreement like Bernie said where you have one or two contracts that each include a lot of rights. So some of these potential problems are substantive to business terms themselves, and some are procedural, how the production companies do business with the talent.

So one problem is having no legitimate opportunity for attorney review, or choice of counsel. On one a competition show a client of ours received documents from the production company on Monday, had to return them all. Actually included both a participant agreement and release, the series rules, a holding entity authorization form, and an emergency medical release. All of these signed by herself and by her other partners and stakeholders by Friday. 

Bernard: So an example of this would be that there was a production company that wanted to put our client onto a music competition show. And they were telling her, I'd bring her up saying, ''Oh, this is great. We really want you. You're going to be fabulous, and we think you're going to go well beyond the audition. Deep into the competition.'' And they gave her everything on a Friday evening, and of course, there's the big, large, bold, extra-sized type warning. They're saying, "You should take this to a lawyer. You have the right to take it to counsel, etc." Luckily for her, her father was my client. 

And the father broke the contract to me. And I said, ''Okay. Let me take a look at this." Was Friday evening, and since he could contact me at home on Friday, I spoke with him, and then I just, basically, announced to the production company by an email, "I've been retained to look this over, and I'll get you my questions by Monday." Monday came along and all of a sudden they didn't want her on the show any longer. And all that hype about how they desperately wanted her, and how well she would do, suddenly flew out the window when she realized she lawyered up. And that's not unusual to see in this type of situation.

Now, some of these competition shows don't expect the contestants to know an entertainment lawyer or to even know where to look. So they have a pool of previously approved entertainment lawyers on their short list, and they will offer the contestants the chance to consult with these entertainment lawyers, either single or as a group of contestants. And these are the lawyers who were sort of the usual suspects in places like New York and Los Angeles, and who will do their job, and review the contract with the potential clients, but won't upset the apple cart, and won't cause too much trouble for the production entity.

Sally: Another problem that we see is inadequate protection for minor children, and this is a factor, especially if the contract is rushed. Then there might not be a court-appointed guardian for the minor to ensure that the contract is fair and that the minor won't squander the compensation. In one matter there was a record label doing a talent third showcase that was being filmed live in case that label wanted to turn it into a TV show.

The label was acting as a production company in this case, and they said they would go through a guardianship process layer if the show went on the air, or if they really wanted to find our clients. But our concern was what if the client got injured, or sang a song which he had written herself with no clear understanding that she would continue to own the song, or otherwise was unprotected during this initial showcase period.

Outside of this, rushed reality TV contracts normally, when making a TV show or a movie, a production company wants to protect its investment by getting a guardian appointed. And having a minor participate in the project without a guardian is as much of a risk for the production company as it is for the minor client. In two cases in the news recently, not about reality shows, but about this point in general, are Malu Trevejo and Lil Pump both recording artists who signed major deals as minors, and then chose to get out of them, and were able to do so because proper steps hadn't been taken.

Another point is, like we mentioned earlier, business terms are often non-negotiable. Sometimes you can get the changes to their form contract, but often the production companies won't negotiate at all, including about their business terms. So the client may have to pay the production company a royalty or a share of profits depending on what kind of show it is, and we'll talk about that kind of issue more in a minute. And the business terms are likely to be below industry standards. So, for example, if a client is going on a music show, and signing a deal with a record label as part of being on that competition show, the royalties are most likely going to be lower than the going rate. 

Bernard: That's because the participant not only has to pay royalty shares to the record company, but also to the television production company that brought her to the attention of the record company. Now another one of the problems that we often see is conflict of interest. If you are signing a contract with the record company, generally speaking, you have a manager, and your manager's job is to protect your interest, to fight for you against the record company, to make the best deal possible. 

A lot of these competition reality shows, in the series of contracts that they give to the contestants, not only are they basically, if they win, hiring the television production company to bring them to a record company, they're also hiring their artistic manager. And it's very difficult to have the person who is your manager, who's supposed to be on the same side of the table as you, be on the other side of the table because they actually are also your record company. It's a clear conflict of interest, in my opinion, but one that's not unusual to see in the series of contracts that your client will be presented when they're offered a chance to be on one of these programs.

Another problem that we see is something called "cross-collateralization." It's the longest word you'll hear today. I think seven syllables and 19 letters. But cross-collateralization in English means that all the different potential streams of income that one might have in a recording deal, from selling recordings, or from selling tee shirts and hats with your face, or your name, or your Ban's photograph on them, or from writing songs, or from playing live concert performances. Generally speaking, you would have different deals with different companies for all of those.

If you win a competition reality show, often all of those rights are controlled by one company, which means that all your eggs are in one basket. The difficulty there is that if you make a ton of money selling tee shirts, but your record company, which has spent a lot of money to produce your recordings doesn't sell a lot of records, they may subtract the losses on the production costs of the recordings from the money you've made on the tee shirts, and collateralize them against each other, hence less profit for the artist at the end of the day. 

Next, the artists have really very little control over his or her own career. We'll talk a little later about clients being sequestered during the filming of the program. So hold that thought for a minute. But when the show is over, the production company really has veto power over the client's entire career, the right to bring the client back on the show, and if the client wins, they immediately enter a long-term, multi-album, contractual arrangement with the production company. 

And that means not only do they win the prize, now they have started promoting the television production company and all the events that they might schedule. I'm sure you've seen, you know, the winners of the contest and the runners-up go on tour, and then start going from town to town. This is all directed by the production company. Again, since everything's in one basket, and cross-collateralize and they're your manager, you have very little control over what decisions are made and stuck in that situation. 

Then there's another problem called "talent hold." Talent hold happens when you don't win, but they might want to select you as a runner-up to do a deal with you down the road. So the television production company may have the right, there's the talent or provision in your contract, to continue to work with you for a small amount of money up front, but they could hold you to them, contractually bound to them, for up to sometimes a year, or at least a year after the final episode of the series in which the client appears airs. That means that your client won't really be able to do anything in that industry for quite a period of time, because they could be called back by the production company to then go into business with them. It makes it difficult for the artist to get any other business going during that time.

Sally: Yeah. And sometimes even if a client gets an offer during this talent hold period, gets an offer of employment as a performer from a third party, the client has to notify the production company from the TV show, and the production company has let's say five days to exercise an option, and preempt the offer from a third party. So it makes it hard for the client to get any other business going.

Bernard: Yeah. That's really called a matching right. And you tend to see those here and there. It makes it difficult for you really to get anything going. Now, the other thing that you need to worry about, not in one of these musical or dancing kind of competition shows, but in other business-related reality programming, they might have something called "a business participation period."

And the difficult there...the difficult problem there is that in exchange for being on the show for just a couple of minutes on national TV, the contestant has to agree that the production company has the ability to participate, not only in the business project they've pitched on this program, but also in any other future business the contestant might do with one of the other posts, or mentors, or investors on the show that could last for a year, or maybe even two years after the client appears on the show.

Now, if the client does win, we may be able to negotiate a reduction in the length of time that business participation period could last, but it is an issue that you need to be concerned about. Another one of the issues we might need to be concerned about is the life story rights deal. Generally speaking, a life story rights deal is a movie deal, or a television old-fashioned kind of movie of the week kind of deal, where a film is made about some event that happens. 

I remember a famous one was called, "Not with my daughter," or something like that where a woman's daughter was kidnapped. And it was a television movie made about her attempts to retrieve her daughter from the bad guys. And, you know, there have been films made about people falling into cults, and other things of that nature.

Well, in a reality show, to go on the show, your client may be going on to be the best chef or the best dancer. The best juggler. Whatever. But they'll have a provision in there that says that the television production company, which is already in the TV business, might want a life story rights deal, and might want to have the option to make a movie about your client's life story. The difficulty there is that that life story event that happened may have nothing to do with the television program the client is competing on.

So we had a situation where this happened. Our client had been a successful musician in a prior life. He had a major record deal, the lead singer in a band, had a major music publishing deal with a songwriter, and then he appeared on a cooking show. And the production company wanted life story option rights for things unrelated to cooking. And we argued, unsuccessfully, that this television production company, which is in the cooking business, really shouldn't have any rights to this guy's life story about his prior career as a musician.

They were not interested in removing that clause of the contract. Sometimes they will take this clause out. Sometimes they won't. It's just a question of how badly they want your client to be on the program, and how relevant they feel it might be to their future endeavors. Now it's time for questions and answers, so if anybody has any, let's have them.

Rochelle: If all the attendees can enter in the passcode for today, which is "Competition" and any questions that you have for Bernard and Sally. We don't have any questions as of yet, so we can just continue with the presentation. 

Sally: Okay. So now we're going to be talking about once the client has gotten onto the show. How did, you know, matters having to do with how they're treated during, and after the production, and also related fine print issues that come up in these contracts. So here are the points we're going to talk about. Hidden cameras and the associated lack of privacy, if the contestants are going to be sequestered from their families and friends, the confidentiality and nondisclosure and indemnity clauses, more about that, and things like the producer being able to alter the prize or change the rules and things along those lines. So let's look into these a little more detail. Here is some hidden camera language.

Bernard: We're not going to read this to you. We know you're all smart people, so you can see that on your own. Would take up too much time reading these slides deep, but this is typical language we're taking right from some of these agreements.

Sally: So our concern is to protect the clients. The contestants. Some shows want to show embarrassing material. We don't really want that on behalf of our clients. So we have gotten some shows to change this provision. One noncompetition show agreed that they wouldn't have hidden cameras, or if they did, they would tell us when and where the hidden cameras would be. They also agreed not to film the client in the bathroom, which was a big step.

Bernard: That was a big step and we had lots of discussions back and forth with the production team about whether or not they have a camera in the bathroom. The next issue is sequestering the contestants. So the obvious thing, and we're not only talent reps here, sometimes we're on the other side, and the obvious thing is there's a lot of money invested in these programs. And in order to keep the audience watching, and keep the flow of advertising dollars coming into the program, we don't want to ruin the ending, or let people know the ending before it happens.

So we don't want to ruin the big reveal as Sally likes to call it in these programs. So we have to hope that the production company, the producers, are going to show some good judgment and some compassion for the human beings involved in the show because there's obviously more to life than what happens on a TV screen. 

Occasionally, some of these shows have agreed to make exceptions for a family emergency. So we were able to stay in the contract. If something happens, they can get a call through. Generally, when your client goes on these programs, their phone is taken away, their access to the internet is taken away, and for weeks, and sometimes months, they're away from their family, their friends, their dog, and they have no idea really what's going on at home. And, you know, after a big event happened in 2016, which I'll say about in a second, the companies are a little more flexible about this particular situation. 

So what happened was that David Bowie, the rock star, his first wife Angela was competing on Big Brother in the United Kingdom, and David passed away from cancer. And so the production company wasn't sure if they would actually go to Angela to tell her because, you know, David had moved on to a second wife, but he had a child with Angela.

And so eventually they tell her, and she elected to stay on the program despite this. But the mess that happened thereafter was insane because she told someone else, who was a contestant on the program that David had died. And the contestant...the other contestants thought they were...she was talking about a different David on the program, and it became a whole big mess. And it was in the news.

And the point is that when something like this happens, you have to think about, no pun intended real-world issues. No pun intended, these are real people, and they've got real problems, and you don't want to cause any kind of long-term stress or problems in someone's life because you caused them to skip a funeral, or not to be there when their loved ones are killed, etc. So the sequestering of the contestants can be a substantial issue for discussion.

Sally: Yeah. That event with Angela Bowie was ''good TV'' in the sense that it was sensationalistic, but it actually led to viewer complaints, and so I guess maybe the other network realized you have to show a little bit of sensitivity sometimes. Next thing we wanted to show you was a very lengthy indemnification clause, which goes on for two slides. So I'll just let this one sit here for a minute, and then we'll switch to the next page after a second.

Bernard: Suffice it to say, while you're reading this slide, just the understanding that this is basically non-negotiable. They very rarely allow any changes whatsoever to an indemnity provision like this. 

Sally: All right. Here's the second part with our own personal underlining in italics. So some of the things that we want to point out about this are, first of all, it requires indemnification by the contestant of any legal, equitable, or other theory. And specifically, one of the things that bothers me the most is the contestant's indemnity applies to claims arising out of an intentional conduct. Bear in mind all of this, of course... Let me go back for a second. To the maximum extent permitted by law.

So, you know, there may be some coverage for the client there, but still, in our opinion, this is a bit overreaching. So this indemnification applies to defamation and false light claims. So in other words, the production company can make the client look bad even deliberately. Does anybody remember William Fung? He was an engineering student, and unfortunately rather awful singer, who performed on American Idol in 2004 in the audition round.

And he didn't make it past the judges to the next round, but he gained a cult following and became an inadvertent celebrity. So I don't think it really backfired for him. He seems to take it all in stride, but for somebody who actually was trying to be a singer, or consider themselves a good singer, it could have been mortifying and very bad to their career.

Somewhat similarly, a client of ours was on a show where the producers said they really wanted her on the show, and they encouraged her to embellish her singing style. And then so when she went on the judges that went on the show and did that, the judges made fun of her for her embellished singing style saying that she was caterwauling. So she was very taken aback and felt like she'd been misled. And we don't want our clients, of course, being made to look bad, either as a bad performer, or as the mean character as some characters are made out to be on some of these shows, or in any other way.

Bernard: So, you know, remember that these are what we call "Reality Shows." The idea being that you're getting a voyeuristic glimpse into someone else's world, and you really see what's really happening, and [inaudible 00:29:49] people who are not professional actors. But no pun intended, in reality, the production company, and the contract that they give to your client, very clearly says that they have the right to make editorial decisions. And they can edit the program in such a way as to create characterizations and caricatures of your client.

So they can make your client look like the evil witch, or make your client look like the underdog who could be a hero if he could only sing a little better, and then only show him singing poorly rather than improving, etc., so that they can take liberties, with the actual film that they've made, in order to make semi-fictional portrayals of the people who are involved in the show. And, of course, the client has that, so they've no say about how they do that. And they don't know that they're going to end up as a good guy or a bad guy. And you never know what that will be.

Sally: Further another claim that is done away with here is infliction of emotional distress, which would be unfortunate if it happened. And, you know, why would we want our clients to suffer that, especially intentionally. Another thing that is another matter, which the client is being asked to indemnify, is dissatisfaction with any prize. Well, it's worth noting that sometimes the production company is allowed to change the prize midway through the show, or whenever they feel like it. 

But depending on the type of show, the price could range from a trophy to a sum of money, either paid per episode for as long as the contestant lasts on the show, or simply a prize for winning. Or it could change for a particular job, or the chance to even have their own TV show. So if the production company can change the prize midstream, this is especially bad if the purported prize as a particular career opportunity, such as a job or a TV show of one zone, or large sum of money rather than some object like a trophy.

Bernard: I'll tell you a war story about that in a couple of minutes. Let me go back for a second, you know, in consulting the contestants. President of the United States, one of the things that he's done, in his past in addition to being real estate developers, is he's been a reality show Rochelle and kind of specializes in pitting contestants against each other, and in lambasting the contestants, and verbally making fun of them, or making light of their accomplishments.

And you have to understand, you know, when you go onto one of these programs, you are in for a penny, in for a pound. And editorial decisions being what they are, and the contracts being what they are, you have very little ability to fight back when that happens. And any response to that may end up on the cutting room floor as they say. Go back for one second.

Sally: I think we skipped something. 

Bernard: Go back for a second. Go back to right back here. All right. So one of the things that I wanted to mention here is that the production company has some information in the contract about copyright infringements. You know, it's possible that the production company might be working on a similar program to something that your client is doing or might want to do. So you have to give up in advance the right to bring any claim or action against the production company for copying your material or putting out similar kinds of material to yours.

I think also that you need to be aware of the potential for claims for breach of contract, or right of privacy, right of publicity. You're giving up, for the most part, all of those claims. And our position has always been that the production company should not be able to do inflict intentional torture... inflict intentional harm on people, but sometimes they will not remove that language.

Okay. Next, we'd like to talk to you about the liquidated damages provision that's seen in nearly all of these reality television programs. For those of you who are not lawyers by trade, liquidated damages it's, basically, a fancy way to say a penalty clause in advance. So if you do something wrong to breach the contract, you've already agreed how much it's going to cost you. And this is a typical liquidated damages provision from a typical reality show deal. 

Now, the production company is understandably worried about the contestants keeping things confidential. So they don't want the contestant revealing in advance who won, or what happened, or, you know, what the tricks, and turns, and trails, and travails were of the various contestants during the series. However, $5 million is probably more money than anybody, who will walk into your office, will ever have to pay before they go on a program like this. Their...our hope is they'll get rich by going on the show.

But these companies have these very, very expensive liquidated damages provisions, and there's very little that you can do to negotiate any reduction or elimination of this kind of provision. It's just standard par for the course. Now, understandably, these are very expensive shows to mount and to put on the air, and there's a lot of money at stake. Nevertheless, your client couldn't be held liable. And so this is part and parcel of why they take away the cell phone. Don't let them send out text messages. For example, I'm losing. I'll tell all my friends to call in and vote for me. Because if you can upset the apple cart that way, it's going to cost your client a whole lot of dough.

Another thing that a television production company might try to slip under the nose of the contestant is that they can change the rules of the game during the game. Imagine if you're playing basketball, and all of a sudden the net you're aiming at is no longer 10 feet tall, it's 12 feet tall. Well, they can do that. And there was a time when this happened to a client of mine that was offered a chance to be on a competition reality show where they were going to eliminate the contestants week by week.

And at the end of the winner, the last person standing, would get to be the lead singer of a really successful well-known band that was looking for a new lead singer, and they were going to be able to not only make an album with this group but go on tour for a year with this group. And it sounded great to the contestant, and I thought about it for a minute and I said, "Well, wait a minute. Given that some of these television shows have surprise endings, given that they often try to trick the contestants into doing A, when they're really setting them up to B, I wasn't so sure about this provision in the contract that said that we could change the price, including the grand prize, before, during, and after the series went into production. 

I wanted to make sure that they weren't trying to sell my client a bill of goods into thinking he was really a great singer when actually they didn't think he was a good singer, and they might be making a fool out of him and all the other contestants on the program. And remember, this is shortly after the William Hung hysteria happened on American Idol. 

So... All right, the bands from Australia and I did a little research and I found out who the manager of the band was in Melbourne, Australia. And there is a big-time difference between the East coast of the USA where we're headquartered in Philadelphia and Australia. But I stayed up on a Thursday night until about 10:00 at night, and made a very, very long-distance phone call to the management office of this band on Australia to confirm.

And I got the manager on the phone to confirm that indeed they were actually involved with this show, and they really were offering this prize, and they really did need a lead singer, and everything was legitimate. And then only then I could tell my client, "Okay. It's unlikely you're going to have to worry that they're going to make a joke out of this and it's all a sham." When I asked the same question of the production company, they declined to give me an answer. So that's why I took it upon myself to actually speak to the manager of this band all the way in Australia.

Sally: So in addition to these being able to possibly change both the rules and the prize at any point, there's one other slide that we just want to show you because this is perhaps the silliest one of all that we've seen.

Bernard: Okay. Let's read this together like we're in a worship service.

Sally and Bernard: I represent and warrant that I am capable of performing any activities that might be required of a participant of the series, even though I do not know precisely what those activities may entail.

Bernard: So think about how ludicrous that is. You're promising in advance that you can do anything they're going to make you do even if they're not telling you exactly what it is going to be. Just the whole thing defies logic and there it was in black and white, buried on page 57 of the 65-page contract or somewhere about that. And so my point is it's not just making a joke and of this. You need to read every word of every contract that comes in because you might find something like this which defies logic.

And I know that some of these programs like ''American Ninja'' or others, you know, put the people who were contestants through very physical activities where they have to navigate obstacle courses, and they might injure themselves. You know, that I understand. But asking someone if they're capable of fencing or skydiving, is one thing. Not telling them they'll be asked the fence or skydive, before they sign onto the show, and making them promise they're able to do it, even though you may not know that they're afraid of heights, or they're afraid of sharp objects. That's a horse of another color. So you just...you need to question these kinds of things because, obviously, this clause is a little bit over-lawyered, but you do find these things regularly in these contracts.

Sally: All right. So moving on from these sort of more legal, specific potential pitfalls. We wanted to talk at the end here about just some common-sense considerations if you get this call, or have this interested client. Does this production company, or the casting agent that you're dealing with, do they give you contact information? Is there an actual physical address of this company? Are they willing to give you a phone number and a name of somebody? Not that necessarily you'll be able to get somebody on the phone. Sometimes you can, and sometimes you can't.

Bernard: Yeah. There been times I kid you not when I receive 30, 40-page contracts, and nowhere in the contract is there a name, or an address, or phone number, or an email of a person actually involved on the production company side. There may be some producer who's 22 years old, he's got a cell phone and is trying to hype your client and pitch a client to come on the show, and then you get the contract. Even if you're required to give them notice, in certain circumstances if you believe there's a breach of contract, there's no address on there to where you would send the notice. Not unusual to see that kind of thing.

Sally: Yeah. And a related point is what is the track record of the people involved. If there are no names given, or if there are names given and you can't find that person anywhere by googling their name, or you look them up and they've not done anything that you've ever heard of, not to say that people don't start somewhere, but, you know, it's not a good sign. And it's important to do some due diligence if there's no actual address or phone number provided. That's not a good sign. 

If there's no name given, not a good sign. If you've never heard of the company, but they do list an address, look up the address on Google maps and see is this an actual business building, or is it a garage somewhere. You know, you can figure out some... You can eliminate a lot of stuff just by doing some basic checking around.

Bernard: So a lot of the service that you can provide for a client, that we often do, is basic common-sense stuff like Sally's discussing. I mean, the clients so excited about the chance to be on TV. A chance to be a star. So they often lose their sense of legitimacy, and they're willing to fully suspend any kind of common sense and investigation, and what business they might be involved with. Look, you wouldn't buy a house unless you had an inspector look at the place to make sure that the roof didn't leak.

But many people, when they walk into your office with a reality television show contracts, they're willing to sign right away just for the chance to grab at that brass ring of fame without even checking to see whether or not the roof leaks, or whether this company is legitimate, or whether the people who are running the contest have spent some time in jail for fraud. You know, it could be anything like that.

So you really need to take them by the hand, your client, say, ''Look, let's take a breath. Let's take a step back. Let's see whether this is real and whether this makes any sense. The person offering you this opportunity, do they have any experience in the television industry, or is this their chance to break into it, and you're the Guinea pig?'' So you need to kind of look into this because your client won't.

Sally: Yeah. And one other related point about that is if you're given some sort of business name, do a business entity name search. I wouldn't recommend having a client go on a TV show that's not affiliated with a corporate entity. If something goes wrong, you want to know that there's some sort of corporation out there.

Bernard: They're not going to indemnify your client for $5 million, are they? 

Sally: Right. 

Bernard: It's the other way around. 

Sally: So another question to ask is, is the applicant, your client, required to submit any sort of intellectual property to get on this show, or to be considered to go on the show? Contestants shouldn't be forced to give up rights to her trademarks, or copyrights, or patents, or trade secrets just to apply to be a contestant, but the contracts often require them to do so. And a related point to that is also infringement. What if the client sends in a recording of her best original song? You want to know that this is a legitimate company and that the production company won't rip off the song, or that you want to know that the production company will protect it so that third parties don't accidentally get access to this song. So, again, you just want to know you're dealing with trustworthy people. 

Bernard: Let me go back for a second to this IP thought. Now, many of you will have clients walk into your office who are creators. Maybe it's an author. Maybe it's an inventor. You need to look at these contracts very carefully because often they will unwittingly take ownership. They're not licensing. They might try to actually take ownership of your client's patentable material, business idea, copyrighted song, melody, screenplay, you name it. Just to audition for the program, you may need to give up ownership rights and intellectual property rights of what you use for your audition piece, even if you don't get on the show.

And that's a real shame if you've got a great melody for a great song, and don't think you're a great singer, and they don't take your client on the show, but you ended up losing the rights to that song. So you need to make it clear that there are rules for transfer of intellectual property rights. And then we've asked them very carefully if it's not your field of expertise, then do yourself and your client a favor and bring in another expert who knows about these types of things. Because you don't want to accidentally enable your clients to give up rights to something for the rest of their lives.

Sally: And finally, perhaps the biggest question. Given everything we've been saying about all these potential pitfalls is does the contestant really need to participate in this particular show in order to advance a career? Being on a show helped one of our clients. I mentioned before that one of our clients won a business show that he was on. In most other cases, when our clients had been on these shows, it wasn't necessary for the client's career. 

And in general, going on one of these shows, it could be helpful, but it could also potentially hinder a client's career. It could, as we suggested, it could tie them up for less than optimal agreements for a period of time. It can also make them look bad either accidentally or on purpose. And I mentioned the client who was criticized for her singing style on the show. 

Another story along those lines is we know of a professional woman who was on a non-competition reality show. And it was set up as the main character on the show with the results that this backfired on her professional career. So there's a tradeoff, and there's some things to think about whether it's really worth going on the show. Whether or not it's a good move to appear on a competition show might depend on the type of client as well as the type of show.

A celebrity making a comeback might have more to gain on a show that features celebrities, especially if she or he does well, than, for example, an unknown singer would have to gain by going on a music competition show where unless the client wins, he will likely be forgotten after a few months and may have tied up some of his rights for a while.

Bernard: Yeah. I mean, think about your favorite show that you like to watch, and can you tell us, can you tell yourself, who won? Who came in second place? The runner-up on last season's audition. Sometimes when it's more than a few weeks away, you've forgotten it. And part of that is because these shows primarily promote themselves more than the individual contestants. Many people come into our office and they say, ''Well, you know, Bernie, I'd like to go on this show because I think it will really get the world to know who I am." 

"And whether I win or lose doesn't matter because now millions of people will know my name.'' And I say, "Not so fast." And ask them that question, "Who won this show last year or the season before?" And often they can't tell me even if they are fans of the program. And you think about how these shows are promoted and marketed, they're more about the perpetuation of the show itself than about promoting the individuals who were the contestants, who were shown only for a split second on the advertising for the program, and rarely named by name. 

And so you have to think about your client. Where they are in their career. Is this something that will help or hinder their career? It might be helpful. Then again, it might not. Often the people that come to see Sally and me about this are either at the tail end of their career, when they know it's their last real chance to get into this business, and they figured they have nothing to lose or the people who are in the very beginning of their career, who are unsophisticated, ignorant, and have no knowledge of how the business really works, and are willing to do just about anything in order to get their name, and their face, and their talent out there. But unfortunately, they often regret signing the deal within minutes after they sign it. 

And the one final war story I can tell you is that at a client who was the opening act, the support act for one of the winners of one of these big, big musical competition reality shows. And she was doing this tour years after she had won the show, and our guy was on tour with her doing 40 or 50 shows. And at the middle of the tour, the star decided to throw a party for everybody in the crew, and everybody in her band and all the people who are on the tour.

And the reason for the celebrations was that she had finally delivered the last album that she was contractually obliged to deliver to the people who had put her on the show in the first place. And she was thrilled to finally be out from those shackles and free to do the songs she wanted, in a way that she wanted, and to be able to collect what she considered to be a fair wage for doing so. So she was so excited about finally being free of this old TV deal, and she threw a party.

And so all I can say is that even for those doors successful on this program, it isn't necessarily a great deal for the contestants. That being said, if you are representing somebody who's putting one of these programs together, you need to protect yourself. You need to make sure that the people who go on the show are doing it for the right reasons, with the right intentions, and that you'll work together with them in a way that's fair and reasonable, so you can all do well together. You know, we're not just talent lawyers, sometimes we're on the other side, and we try to do these deals in a way that's very reasonable to everyone.

Sally: So that is the end of our prepared presentation. Here is contact information, so please do feel free to reach out if you would like. And now we will open it up for Q&A.

Rochelle: Thank you, Bernard and Sally. If all the attendees can enter in the passcode for today, which is, "Competition" and any questions that you have. Our first question, "Are adhesion unfairness type arguments useless in Los Angeles Superior Court?"

Bernard: Neither of us are licensed to practice in the state of California, so anything that we will say now will be general rather than specific. What I can say is that the California labor laws are more protective of talent than in many other states. And on the other side of that coin, most of television is produced in either California or New York. So my suspicion is that even though it is somewhat of a contract of adhesion with boilerplate language that really is non-negotiable, most likely they will be enforceable, at least in part.

Sally: Yeah. I'm not really aware of litigation that's been brought on that particular issue, so I can't say anything more than that.

Rochelle: Next question. "In regard to when the production company switches up on the contestant during the production, is this legal? It seems extremely deceitful."

Bernard: Yes. But also legal. You know, your client is going into this deal with her eyes open. She has signed the contract. She's agreed that she had the right to counsel, and has gone forward with the show. So yes it is legal. Unfortunately for the people who were made fun, of or taken advantage of, is perfectly legit. It might be great TV. Not necessarily great for the contestant's career. And that's where you have to understand what are the inherent difficulties of reality television, which is that, basically, they're getting the contestants to do the work of actors, without giving them the same legal protections that actors normally enjoy through their various guilds and unions that they belong, and to see it as part of that equation.

Rochelle: Next question. "Is Philadelphia becoming an emerging location for entertainment legal work?"

Sally: I would say Philadelphia already has a rather small but active entertainment, legal bar. Some people working mostly in music. Some working mostly in independent film. Others working in more of the copyright side I guess you could say. And then there are people that do a smattering of arts. And, of course, sports I've sort of considered a separate field. But it's active, but small I would say.

Bernard: Yeah. And the thing about Philadelphia, which is our home, and I think it's heaven on earth, the thing about Philadelphia is that now Philadelphia is the home to the most prestigious, largest, most important cable television company in the world. And that's Comcast. It's the third largest employer in the region, and it has purchased Universal NBC, and now is purchasing Sky. So I believe that the future of Philadelphia for entertainment industry looks bright, given that television is really the animal in the room that dwarfs many of the other parts of the entertainment industry. And such a large, large company that has such an important penetration in the market from television is headquartered here, I think the future is very bright for the Philadelphia entertainment bar.

Sally: And I'll make one other plug for something I'm involved in. I'm on something called the Philadelphia Film Advisory Taskforce that was put together. Well always initiated by one of the city council members, and put together by a resolution of Philadelphia city council. And it's a small group of people that are all involved in the film and TV business in the Philadelphia region coming together to brainstorm ways to support and promote the local film and TV industry. So, hopefully, that will lead to bigger and better things as well. 

Rochelle: Next question. Have any of these contracts been voided as contracts of adhesion?

Bernard: That's a similar question to the one we answered a few minutes ago, and I'm not aware if any of these deals have been thrown out. And, you know, when there were rumblings of complaints about how contestants are being treated on one of these major successful competition reality shows, they revamped the contract and made it more favorable to the contestants. I think is a way to sort of cut that off at the pass. But I don't know about you, Sally, but I'm not aware of anybody making that argument, or try to invalidate one of these fields as a result. 

Sally: I'm not aware of any. I mean, it could have happened, and we might not have... Certainly, it could have happened and we didn't hear about it, but I'm not aware of that happening. I haven't seen anything in the news about it, put it that way, or trades.

Rochelle: Next question. What are suggestions or rules of thumb for people looking to get into reality shows?

Bernard: I guess this is a question aimed more at the contestants than the lawyers. But I think, first of all, as we were saying before, you can't suspend disbelief. You can't suspend your common sense merely because you have a chance to be on television. I think you need to treat this as any other opportunity to get into the entertainment business. And I think also you should never sign one of these things before you take it to an attorney who understands the entertainment business. 

And I say that second part of the sentence because any attorney can read a contract and tell you what it says, but only those of us who are practicing in this field for a long time can tell you what should be in the contract that is not written down. And that's true of any field. Anybody who's a lawyer is an expert in the field knows all the deal points that should be in there. And I think that you shouldn't just sign this thing willy-nilly because you're so desperate to be on the show. I think you need to take it to somebody who knows what they're talking about and make sure you truly understand the potential benefits to you, and the potential pitfalls of being on a program like this.

Sally: I think another interesting aspect that we didn't really touch on is being on a show like this, maybe 15 years ago, was...some people would have thought it was their only chance to get into the limelight, and technology has changed so fast. You know, not only are musicians, obviously, making their own stuff and putting it out there, people are making at least low budget kind of Lo-Fi films and programs and putting it on YouTube. I think people... there are fewer gatekeepers and its things are a little bit different. It's a little bit more possible to tell your client you don't necessarily need a show like this to get your face out there. And there are other ways to go about getting known and getting traction in whatever your field is.

Bernard: That's well said, Sally. I have a client, who is a standup comedian, who was offered a chance to be in one of these shows a couple of years ago and he passed, and then began to promote himself on the internet just doing his comedy. And lo and behold, now he's been offered a movie deal, and more than one because the success he's had on his own without even going through one of these competition programs. So it kind of happened, and the availability of distribution for anybody to put their intellectual property out into the world is much greater with each passing day. There's more and more platforms for that. So this isn't necessarily the only chance you'll have.

Rochelle: Next question. Can a production company make a movie about a private citizen without compensating them?

Bernard: Generally, no. There's a line of cases starting in the US Supreme Court, New York Times Co. v. Sullivan and The General Westmoreland case that says that if you are a public figure, unauthorized biographies can be made without commission or compensation of the subject. But for a private citizen who's not willingly thrust themselves into the public discourse to become a celebrity, it's a much different situation. And you do have rights of privacy.

Sally: Well, I mean, rights of privacy is really a whole...

Bernard: Publicity. I'm sorry.

Sally: Well, it's two things, right to privacy and rights of tools in... Those are a whole talk on, you know, unto themselves because there's a lot of nuances in that. There are variations in state law. I know Indiana is one of the more protective ones, for example. So that's pretty fact specific I would say depending on, you know, are you talking about a private citizen who was involved in an event that's been covered in a newspaper article because it was a big story. It's just is quite fact specific.

Bernard: And most television and film production companies do try to obtain life story rights whether or not the person is public, celebrity, or they're a private person. And maybe TASA will invite us back, and we can talk about that some other time. But Sally is right, that's an hour in itself at least to discuss that issue. That's a great question, but not one that we can answer in the minute or two that remain. 

Rochelle: Last question. "What regulations do production companies have?"

Sally: That's a great question. We should sit down and think about that sometime. Well, let's see what regulations they have?

Bernard: I would start with, they should...if they are in a state that has a hefty labor code regulations, they should consider complying with the labor code to make sure that whatever they're offering in their contract doesn't run afoul of the state labor laws. You also have to decide whether or not it's going to be governed by a union or nonunion shoot. And if it's a union shoot, then you've got not only state requirements, but you have collective bargaining requirements.

Sally: Well, these shows are basically all nonunion. So that's not really so much a factor. I mean, it would be great if there was some sort of code of best practices. I'm sure nobody has ever put that together, but just to go away, get rid of things like indemnifications, allowing intentional torts would be a big step up. 

Bernard: Yeah. The hidden camera stuff. The sequestration stuff. Yeah. I would think that there's a lot of room for improvement in some of these situations no doubt. Like I said before, make great TV, but it doesn't necessarily treat people with respect that they deserve. 

Rochelle: Thank you. In addition to being your best source for testifying and consulting experts for more than 60 years, TASA also offers free interactive webinars, expert-written articles, research reports with expert witnesses, including the Challenge History Report 2.0, and Expert Profile 360. I want to take this opportunity to thank everyone for attending, and most especially Bernard Resnick and Sally Mattison for her time...for their time and effort in creating this presentation.

If you'd like to speak with Bernard or Sally, or if you would like to speak with a TASA representative regarding expert witness for a case study said you were working on, please contact TASA at 1-800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's presentation. This concludes our program for today.

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