Facing legal realities
Lawsuit potential challenges producers of 'unscripted' shows
By Linda Moss -- Broadcasting & Cable, 10/7/2001 8:00:00 PM
Diana Daly, a 22-year-old San Francisco woman, signed a release that permitted VH1 to tape her for its show Bands on the Run. But she didn't expect the camera crew to follow her into a bathroom stall, nor did she expect VH1 to use her image on billboards all over the country.
In Houston, Marietta Marich looked up at her TV set one night to see an image of the corpse of her son, who had overdosed in his Hollywood apartment. It aired as part of a now-defunct syndicated reality series, LAPD: Life on the Beat.
And plumber John Keating claimed he feared for his life when he was set up as part of a prank for an X-rated Candid Camera- type show being produced for Home Box Office. He had been called to a Beverly Hills home by a married woman, who engages in a tryst with her "boyfriend." Keating is there when the jealous husband shows up. In the scene—in which all the other players were actors—Keating is angrily interrogated by the "husband" about what dalliance he had seen.
In all three cases, these private citizens took their cases to court, and sued, with varying results: Daly's action is pending, Marich lost her case, and Keating's suit was "resolved." Reality shows are breaking new ground for television—and overstepping acceptable boundaries, according to some critics, including lawyers. In the process, the programming has raised new legal questions and sparked a wave of lawsuits. Even the Aborigines have gotten into the act, suing Survivor: The Australian Outback earlier this year.
The suits address such issues as privacy, the legality of waivers signed by show participants, liability, the use of hidden cameras, alleged rigging of shows, breach of contract and even copyright infringement.
Reality fallout has caught the attention of people like Steve Beverly, a professor at journalism at Union University in Jackson, Tenn., and a game-show historian. In August, he sent letters to the ranking members of the Senate subcommittee on communications, Ernest Hollings (D-S.C.) and Joseph Lieberman (D-Conn.), calling for hearings on some of the legal issues related to reality TV.
Beverly is seeking a probe of what he calls "risk shows," such as Fear Factor. He wants to know who is ultimately liable if a show contestant is injured or killed: the network, production company or individuals. And he wants to know to what degree waivers signed by show contestants absolve producers and networks of liability.
The kind of shows whose methods are being questioned are "unscripted dramas," such as CBS's Survivor; bold hidden-camera shows that seem aimed at embarrassing their subjects, such as HBO's Taxicab Confessions and NBC's Spy TV; and what Los Angeles Times TV critic Howard Rosenberg describes as "edited-for-drama, camera-on-cops numbers."
Some broadcasters and producers are taking the litigation in stride. "In America, nothing breeds lawsuits like success," says CBS spokesman Chris Ender.
Cops creator and producer John Langley isn't concerned either: "If you're in broadcast, you're going to be sued by somebody, sooner or later. They're nuisance suits. My policy is very firm: I don't settle lawsuits, I fight them to the bitter end. As a consequence, I've never lost one."
The most publicized reality-TV suit to date has been Survivor contestant Stacey Stillman's action against producer Mark Burnett, his production company SEG Inc. and CBS. Filed in February, the suit alleges that Burnett rigged the show by persuading several Survivor contestants to vote Stillman off the island. CBS and Burnett deny any wrongdoing. SEG promptly filed a $5 million countersuit, charging defamation and breach of contract, which Stillman denies. A judge has already ruled that she can't be sued for breach of contract but the defamation claim can proceed. There have also been a handful of suits related to copyright infringement and reality shows. In Australia this summer, an indigenous-music company sued Survivor: The Australian Outback's producers over the use of local music in the show. And in April, CBS sued the Fox broadcast network and LMNO Productions over the Fox show Boot Camp, alleging that Fox had stolen the idea for its show from Survivor. Fox file a counter-complaint against CBS. That case was settled in September, with CBS dropping its suit.
Last fall, Fox Family Channel sued CBS, charging that the broadcast network had copied the concept for its Amazing Race from one of the cable network's shows in development, Race Around the World. That suit is still pending.
Other reality-TV litigation involves hidden cameras, which Allen Funt started using with Candid Camera in 1948. Producers today, some lawyers charge, are using hidden cameras to depict their unsuspecting subjects in situations that are so embarrassing or compromising that they create emotional distress—and grounds for a suit.
Plumber Keating's suit against HBO, Time Warner Entertainment and World of Wonder Productions claimed he suffered emotional distress, fraud, intrusion and invasion of privacy. Filed in November 1999, it charged that WOW had been producing a show whose purpose was "to humiliate other human beings, a human experiment for entertainment, a nasty and perverted version of Candid Camera." Keating sought damages even though the segment never aired on HBO.
According to Keating's attorney, privacy expert Neville Johnson, the "matter has been resolved," and he wouldn't comment further on it.
Hidden-camera shows, by their very nature, leave reality-show producers vulnerable, according to some lawyers.
"To me, there isn't much doubt that these set-ups are intended to inflict some kind of emotional response," say attorney John Walsh, who was initially involved in Food Lion's hidden-camera lawsuit against ABC. "Often, it could be distress, chagrin, being made to feel like you're a fool. If I was advising the people who are producing these programs, I'd say you've got to be careful about that."
Releases do protect producers, although to what extent remains questionable. And producers, in some cases, pay to get them. Veteran David Bell, who produced LAPD: Life on the Beat says that practice isn't typical but it happens. "If we had a segment that we felt was really strong and we had somebody balking at signing a release, we would offer them some money," Bell says. "I don't think we ever paid anybody more than 50 bucks. And typically, if we paid someone it was less than $50. It was nothing. Some of these people just wanted 50 bucks. You have to understand that people the cops deal with are not exactly your high society."
David Goldberg, president of Endemol Entertainment USA Inc., which produces Spy TV and Fear Factor says the waivers for Fear Factor do cover emotional distress, since contestants know they will be put under psychological distress: That's the show's concept.
As for Spy TV Goldberg says he has never wanted to use a tape of someone but couldn't because he or she would not sign a release.
"We are not out to defame people," he says. "But we are in the business of creating entertainment. And we do like to have as much license and flexibility as we possibly can. But it's not about ruining people's lives. With Spy TV it comes down to all about having fun. If the experience was that people were absolutely outraged by what we were doing, we wouldn't have a television show because no one would sign a release."
Jeff Gaspin, NBC executive vice president of alternative series, said the people caught in the summer hit Spy TV stings weren't reluctant or shy about signing releases to permit their segments to air. "Everybody wants to be on television. Everybody wants their 15 minutes of fame, more so now than before, because some of these civilians are becoming pseudo-celebrities on these reality shows. The incentive is greater now than ever. Look at all the people from Survivor that have had afterlives on television."
That doesn't fly with Peter Funt, executive producer of today's Candid Camera, which airs on Pax TV. He considers Spy TV "mean-spirited" and not in keeping with the credo his father Allen instilled in that show.
"My dad established from the get-go that, while we consider ourselves students of human nature without a degree to support it, we're very sensitive to the idea of going too far or crossing the line or violating people's rights in any way," Funt says. "If you're not careful, you can injure people, and I don't mean physically, I mean emotionally or socially. And if we don't police ourselves carefully, then other powers—be it in government or networks—will step in and set rules for us."
Candid Camera has avoided potential problems by taping people in public places, according to Funt. But the courts have made varied rulings as to what constitutes a public place.
"With hidden cameras, the pivotal question is whether the camera is situated in a place where a person has 'a reasonable expectation of privacy,'" says Clay Calvert, an associate professor of communications and law at Penn State University. "That's always what this issue turns on."
The law regarding hidden cameras rests in part on "two-party consent laws." Roughly a dozen states have such laws, which state that one person can't legally do an audio recording of a second party without the second party's consent. That's why HBO's Taxicab Confessions is taped in one-party–consent states, such as New York and Nevada, where only one person has to know a taping is going on.
HBO doesn't air anyone on Taxicab Confessions unless he or she signs a waiver, an HBO spokesman said. At the end of each episode, the show actually depicts passengers, who sometimes have revealed intimate details about their sex lives, gleefully signing releases while still in the cab. A suit has never been filed against the show, according to the spokesman. But HBO does pick up the cost of the passengers' fares.
Lawyers believe that such hidden-camera shows create a hornet's nest in terms of privacy issues.
"I'm deeply concerned about a show like Taxicab Confessions," Johnson says. "What happens if, let's say, [a segment is] not aired but one person reveals things about somebody else who is not pictured, confidential, private information? Well, that's terrible if that's occurred. Even it it's not broadcast, you've still induced somebody to reveal this information."
Privacy issues were at the heart of the suit filed by the Marich family against MGM and of the pending suit involving VH1's Bands on the Run.
In August, a jury in Los Angeles ruled against the Marich family, rejecting its claim that its privacy was invaded by MGM's LAPD: Life on the Beat. In an episode called "The Final Act," the program showed a police officer calling the Marich family to say that their 27-year-old son had died of overdose. The program, which aired in 1997, showed the son's slumped-over body.
Filed in August against Viacom Inc. and MTV Networks Inc., Daly's suit claims invasion of privacy, intrusion, libel and infliction of emotional distress. MTVN referred comments on the suit to VH1, and a VH1 spokeswoman said the network doesn't comment on litigation.
Daly lawyer Michael Lieberman claims that VH1 didn't have a valid consent from his client to use her image on Bands on the Run. He charges that she was drunk, at a San Francisco bar, when she signed a consent form. Daly didn't bargain on a camera crew's following her into bathroom stall and taping her as she kissed a band member, according to Lieberman. And she was later shocked when VH1 used still photos of her in ads for the show on billboards and such magazines as Rolling Stone. "She came to me very upset," Lieberman says. "She was very weirded out that they were running billboards with her picture all over the country and in magazines. All her friends were calling her. She wanted to know what the deal was."
The lawsuit also charges that VH1 falsely implied that Daly had sexual relations with a band member.
Lieberman says he contacted MTVN and was told that not only did it have a consent form from Daly but it didn't even need one to air film with her because Bands on the Run is a documentary.
The Los Angeles Times' Rosenberg, who teaches a TV journalism ethics class at the University of Southern California and championed the Marichs' case, says that, if you take Daly at her word, the fact that she was drinking must have been obvious.
"At that point, you say, 'You know this person is not really responsible to sign a waiver,'" he says. "Freedom of the press gives us in the media enormous latitude to do almost anything we want. At the same time, just because we can do something legally doesn't mean we should do something morally. To me, the law in some cases is the least tolerable behavior."
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