Lights, Camera, Contracts: The Legal Side of Reality TV

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Motivating Factors to be Reality Show Participant

How could one forget Teresa Giudice’s infamous table flip on the season one finale of The Real Housewives of New Jersey or when Snooki and JWoww wrote Sammi a letter about Ron’s infidelity on Jersey Shore?  More recently, “Scandoval” was the topic of conversations for weeks before viewers got to see the aftermath unfold during the most recent season of Vanderpump Rules.  Whether you love it or love to hate it, reality TV has captured our attention and embedded itself as a key influencer of society.  The start of reality TV dates back to the 1970s, but it really did not take off until the early 2000s with shows like The Real World and Survivor.  The curiosity and intrigue of watching real people unscripted, combined with the low cost of production, is what turned reality TV into a worldwide phenomenon. (Book: Entertainment Law in a Nutshell by Sherri Burr).

Wanting to be a participant on a reality show is driven by a number of reasons, but the most common are fame, money, and love.  Kim Kardashian likely would not have been able to become a billionaire without Keeping Up With the Kardashians, but it was more arguably from the help of her “mom-ager,” Kris Jenner.  There are shows like American Idol, Hell’s Kitchen, and Project Runway that have discovered people and turned them into common household names like Kelly Clarkson, Carrie Underwood, Morgan Wallen, and Christian Siriano.

Furthermore, dating shows are notorious for cultivating romantic relationships but are still working on the formula to keep couples together.  Some of the most popular love shows include The Bachelor franchise, Love is Blind, Love Island, 90 Day Fiancé, and Married at First Sight.  After being on the air for over 22 years, The Bachelor has resulted in ten spin-off shows, several podcasts, and live touring events.  Eighty couples have resulted from the shows, but only about 5% of them are still together.  Similar statistics span across most dating shows, but regardless, people are still drawn to the drama, storylines, and romance that unfolds.  Not only are viewers continuing to watch, but people still want to be on the show even though there is such a statistically low chance of finding a long-term partner.  Whatever the reason for participation, their love story begins with a romantic entertainment law contract between themselves and a network/production company.

“DO NOT SIGN THIS UNTIL YOU HAVE READ IT.”

Watching reality TV has low stakes, but making it on a reality TV show is a competitive process.  In 2020, Former bachelor Matt James had 6500 applicants, meaning there was less than a 1% percent chance of ending up with him and about a 5% chance of staying with him (Matt James is still with the person he chose.) However, in the slim chance someone does make it on the show, the participant will be asked to sign a legally binding contract.  This contract is an agreement between the individual and the production company or network.  Some of the most common clauses include the hold provision, the producer’s right to sell your life story, the right to defame participants, arbitration, and a disclaimer for liability.

To expand, a hold provision states that the participant will not go on another TV show until after the last episode airs.  It also stipulates that the individual must be available for a certain number of years for appearances at additional filming events like reunion specials or spin-off shows.  Next, depending on the contract, producers have the right to sell any information they obtained during the application process as well as from any third party within that person’s life.  Along with being able to utilize private facts, signing the contract is an acknowledgment that the participant’s portrayal on the show may be “disparaging, defamatory, embarrassing, shocking, surprising, or of an otherwise unfavorable nature.”  There is also an understanding that the show may expose the participant “to public ridicule, humiliation, or condemnation, and may portray [them] in a false light.”

The overall purpose of entertainment contracts is to help the parties define their roles, set their expectations, and settle on compensation.  Another goal is to outline the relationship between the individual and an entertainment company.  These contracts are an essential legal framework designed to protect the parties’ financial interests, copyrights, intellectual property rights, exclusivity, and others.  The popularity of reality television has also meant that the agreements between participants and producers have come under scrutiny.  More people are coming forward to speak out against production companies about how they were treated before, during, or after the filming of the show.  One of the legal issues that continues to come up is whether reality TV participants should be considered independent contractors or employees.

Further, there is often an aspect of the contract where the production company makes it explicitly clear that contestants are “participants” of a contest and not artists or performers.  Most reality TV participants are considered “independent contractors” with no employee/employer relationship.  In a Love is Blind contract, it says that the individual’s appearance is defined as a “participant on the Program” and “not a performance and is not employment and is not subject to any union or guild collective bargaining agreement.”  Additionally, participants are not entitled to wages, salary, workers’ compensation, and other financial gains related to traditional employment.  This is important because there are many aspects of what participants are doing during and after filming that indicate they should be considered employees.

Benefits of Being Considered an Independent Contractor

While it is a growing movement within the entertainment industry for a reality TV participant to be considered an employee, they are often still classified as an independent contractor.  According to the IRS, an individual is an independent contractor if the payer has the right to control or direct the outcome of the work but not what will be done and how it will be completed.  Determining if someone is an employee or an independent contractor is context-dependent.  The U.S. Supreme Court has developed several factors to consider when making the distinction, such as (1) how important the services are to the business, (2) the longevity of the relationship, (3) skills needed to complete the job, (4) the amount of contractor’s investment in facilities, (5) degree of control by the principal, (6) participant’s opportunities for profit and loss, and others.

There are several benefits why being hired as an independent contractor makes the most sense for all involved parties.  First, it allows for more freedom in what participants do while being filmed, such as how they act and what they say.  This would also mean that nobody on set would be considered their boss.  Second, having this freedom can support participants who are building a career through their appearance on a reality TV show.  For example, no one has used reality TV as a business opportunity more successfully than Bethany Frankel from the Real Housewives of New York City (RHONY).  Frankel was cast for RHONY’s first season with a stipend of only about $7,000, which she then used to build a multimillion-dollar company.   Frankel founded Skinnygirl while on the show and then sold it for $100 million in 2011. Luckily for her, Bravo was not entitled to any of those profits.  Now, networks will include what is called a “percentage clause,” which states that whatever earnings a participant makes as a result of being on the show, the network will get a cut of those profits.

Pursuing Reality TV to Advance Career Opportunities

Reality TV is a tremendous opportunity for individuals trying to “make it big,” build their brand, or spearhead a career in TV or social media.  These shows reach millions of viewers with every episode, which can be utilized within a marketing plan for oneself or their business.  In the case of Frankel, Bravo played a major role in helping Frankel build her empire by having a storyline centered around her business.  An employer can prohibit an employee from having another job, but they are not entitled to any percentage of income earned outside the parameters of that employment.  Further, an employer would have full discretion over a participant’s ability to promote their business on the show.  However, an independent contractor would maintain the ability to promote their business in whatever way they see fit without significant oversight from the production company.

Additionally, being an independent contractor could result in higher earnings, while being an employee would require the production company to define the participant’s wages, which could be as low as minimum wage.  However, the money someone could make after going on a reality show is context-specific with many variables, such as how much negotiating power someone holds or how many seasons they’ve been on.  For example, Gordon Ramsey makes about $600,000 per episode on his various shows, and several of the “Real Housewives” make similar figures, but they had to make their way up to that amount.  Generally, the longer someone is on a reality show, the more they will make with each season renewal.  Going on a show like American Idol or RuPaul’s Drag Race will not earn participants anything unless they gain popularity or win.  Conversely, winning a show like Project Runway comes with prize money but also opens up so many doors for opportunities to grow their brand.

Efforts to Reclassify Participants as Employees

Reality television provides entertainment for millions of viewers.  In recent years, former participants have spoken out against the poor treatment they experienced from networks and production companies while filming shows.  Several participants have filed claims for negligence, false imprisonment, and unreasonable contracts.  There also have been employment law violation claims; however, most of these participants are considered independent contractors according to their contracts, which means many federal employment laws do not protect them.  We are in the midst of a wave of advocacy efforts to reclassify reality TV participants to employees, and there are solid arguments to justify this movement.  Illustrating this point can be done by analyzing current cases.

There are two pending litigations in the docket for the Superior Court of Los Angeles County, California, from former contestants of the Netflix series Love is Blind.  First, there is Hartwell v. Kinetic Content, LLC, et al., a class action lawsuit looking for damages because the defendants failed to pay the appropriate wages for hours worked and engaged in unfair business practices in violation of the state’s labor code. In Hartwell, the parties recently agreed to a settlement of $1.4 million. In the second case, the plaintiff, Poche, was a veterinarian living in Texas when she appeared in the series’ fifth season.  A part of her complaint included how the agreement is unlawful and, thus, unenforceable.  The argument focuses on public policy and employment law violations (Poche v. Delirium TV, LLC, et al.).

There are several similarities between the two cases, but the difference is that they are both litigating issues that are contradictory in how they want to be classified as an employee.  As stated above, Poche is looking for a remedy for the alleged harm she faced because of Netflix’s contract breach.  Poche states that Netflix and the production company did not perform the character assessments they said they would, which then led to her getting engaged to someone she deemed as dangerous and, therefore, created unsafe working conditions.  Conversely, Hartwell’s complaint also wants to maintain that he was an employee, but he thinks the character assessments were unlawful because they placed an illegal “restriction on the opportunity to work in the United States.”  (Hartwell v. Kinetic Content, LLC, et al.).

Producers Assertion of Control Goes Beyond Independent Contractor

While some might think reality stars being employees for the network is a stretch, there are valid reasons that they should be classified as such.  For instance, when thinking about the structure and logistics of a reality TV show, contestants are usually filmed for 24-hours-7-days-a-week and under the control of producers for days or weeks at a time.  On Project Runway, contestants work for nearly 18 hours a day, and on The Bachelor, contestants’ schedules are at the mercy of producers.  For example, contestants are told when to wake up and instructed on the activities they will be doing that day.

Furthermore, a common clause within reality agreements states participants must be available for sometimes up to five years for additional filming events.  When thinking logistically about what this means, there is the possibility of a contestant not being able to hold down a steady job during this time.  While most individuals quit their jobs to be on the show, others had the flexibility to get time off from work.  However, an employer may not allow their employee to take up to six consecutive weeks off several different times within five years.   Being on a retainer falls more in line with what an employer would expect from an employee.

Unfair business practices from networks and production companies are another reason reality stars should be considered the show’s employees.  There is a common understanding that network executives are in the business to maintain large profit margins, and nothing consistently maintains high revenue, quite like reality TV.  The low cost of production in filming unscripted TV is because shows do not have to pay unionized actors and actresses, filming is usually in one location, and they do not have to hire any writers.  Thus, production companies receive a disproportionate amount of revenue when participants are an equal part of the show’s outcome.  It appears that participants could easily be exploited, but being an employee would ensure equal protection of the law.

Conclusion

Reality TV contracts are infamous for their unique provisions, such as being able to portray participants in any way, participants having to pay a large sum of money if they discontinue their participation, and having the right to film 24 hours a day.  This has opened a can of legal worms because many contestants seek a remedy after feeling like producers manipulated them.  For example, in Batfilm Productions, Inc. v. Warner Bros. Inc., the men who sold the motion picture rights to their creation of Batman ended up never earning any net profits even though Warner Bros did.  The specific language in the contract on how to calculate net profits was not in favor of the creators.  The court held that both parties have a duty to understand the nature of their commitments and, thus, ruled in favor of the defendants.

A former host of the show Dual Survival sued the Discovery Channel because he claimed that in his final episode, he was inaccurately depicted.  In Lundin v. Discovery Communications Incorporated, the court explained how the entire show was fabricated and scripted to convey a story to the audience.  Lundin was the show’s host for a couple of seasons and was okay with the editing until he was not anymore.  Reality TV contracts say that producers have the right to edit the contestants in any way they want, but there are often folks who receive a positive edit that makes them look good.

Actors and actresses who play in scripted television shows have the protection of the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA), something reality stars lack.  SAG-AFTRA is an actor’s union, and nearly every professional actor is a member.  Their advocacy services help with fair pay, equal bargaining power, contract negotiations, and insurance.  Reality TV contracts are often 30 to 50 pages long and contain convoluted language with specific legalese not understood by the general public.  Thus, contestants would benefit greatly from similar protection.

Whether participants are employees or independent contractors, they do have a right to equal protection and safe conditions before, during, and after filming a reality TV show.  In August of 2023, SAG-AFTRA teamed up with Bethenny Frankel and two entertainment lawyers to fight for the rights of reality performers.  In defense of production companies and networks, they put in their contracts “DO NOT SIGN THIS UNTIL YOU HAVE READ IT” in big letters.  Kinetic Content’s (a production company) website advises interested participants to consult a lawyer before signing any of their contracts.  There is likely a middle ground somewhere, but for now, interested parties should very carefully consider whether they are willing to sign these contracts to find what they are looking for.