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Legally, Reality Series Are Tricky

Reality-based programming has seen a tremendous resurgence in popularity. This popularity is due in part to remarkable innovation in the field with the introduction of new and more sophisticated formats.

Fifteen years ago, in the previous wave of popularity for reality TV, programmers enjoyed tremendous success with shows focused on amazing animals, funny home videos, incredible people and incredible events.

Today's programs require exotic locations, strong emotions, competition, strategy, and an intimate revelation of the "real behavior" of people when they do not think, do not know, have forgotten, or do not care that cameras are recording their every move.

Good legal work is an indispensable component to the production and trouble-free distribution of unscripted programming. Implementing clearance procedures and developing guidelines and forms (such as releases, location agreements, work-for-hire services agreements) are an inexpensive means of assisting in the prevention of a successful third-party claim against a program. Failure to appropriately clear material can result in costly and time-consuming claims and litigation.

Further, a party may apply for a temporary restraining order or injunction, which may prevent or severely impede the release of the programming.

Some of the third-party rights that may be violated in connection with reality-based programs include:

  • An individual's right to privacy. The law generally recognizes four separate types of invasion of privacy: public disclosure (disclosure of embarrassing private facts about an individual), intrusion (physically intruding into a person's private affairs), false light (publicity that is false but not necessarily defamatory) and misappropriation (appropriating a person's name or likeness without his or her consent).
  • Defamation (a false statement about a person that harms that person).
  • Intentional infliction of emotional distress (outrageous conduct toward a person that intentionally or recklessly causes severe emotional distress).
  • Copyright and trademark infringement.

The best protection against a claim of invasion of privacy is a written release signed by each person whose likeness or voice is utilized in connection with the program. It is critical that a release include a waiver of all claims known and unknown. It must also be clear in describing each and every detail of the subject of the waiver.

Further, even with an elegantly drafted, comprehensive release, a programmer must be aware that there are certain matters, such as intentional torts, for which a release is generally unenforceable. For instance, videotaping with hidden cameras could generate many civil claims as well as claims under eavesdropping statutes.

Each reality-based television program poses a unique set of legal issues and considerations. Producers must anticipate the many permutations that can arise in the fast-paced and spontaneous atmosphere.