As we discussed in class on Monday, January 29, contracts are "mas macho" when it comes to the tort of defamation. NDA's may create an actionable contract claim for a party who could potentially be defamed, as we saw in the Weigand case. Prof. Alonso also began the class talking about the two drunk frat boys in the motor home in the film Borat, and their waiver issues.
Waivers of the right to recover in tort for defamation are common-place in the age of reality television. Below are a few examples of what these contracts look like.
This Real World Productions, Inc. contract is the one signed by any applicant who wanted to appear as a housemate in MTV's The Real World. The thirty-page document sets forth significant rights of the producers of the television show, and significantly curtails the rights of the persons appearing on it. Pay particular attention to Paragraphs 11 and 12 which state, in part,
I acknowledge and understand that the film, tape, audio and other recordings that will be made of me in connection with the Program could, in other circumstances, be considered a serious invasion of my privacy.
I further understand that my appearance, depiction, and/or portrayal in and in connection with the Program (including without limitation, the title of the Program), and my actions and the actions of others displayed in and in connection with the Program, may be disparaging, defamatory, embarrassing or of an otherwise unfavorable nature, may expose me to public ridicule, humiliation or condemnation, and may portray me in a false light.
The RWP full contract is full of other nasty gems, including a waiver of liability for contracting AIDS and other STIs; of course RWP did not warrant the other members of the house were STI-free!
You may wonder whether these terms were actually enforceable, giving the one-sided nature of the contracts. RWP used these terms for years, without incurring any significant liability. However, there were holes, as Prof. Alonso alluded to at the beginning of class. This short-form Real World Productions, Inc. guest release was used by RWP to release liability for persons who were not proper housemates, but who may have become guests in the house. Notice the language in Paragraph 4:
I may reveal and/or relate, other parties (including without limitation, other Program participants an/or Producer) may reveal and/or relate, or the Producer may thus edit, information about me of a personal, surprising, defamatory, disparaging, embarrassing or unfavorable nature.
Of course, this is the backbone of reality television--the producers edit the content to create drama. They did so in the Real World: DC season with a woman named Golzar Amirmotazedi, who appeared on multiple episodes of the show. Ms. Amirmotazedi was not presented favorably on the show and was ultimately kicked out of the house by the housemates. She claims she was subjected to public ridicule--something that she purportedly agreed could be an aspect of her appearance on the show. Nevertheless, Ms. Amirmotazedi sued RWP for invasion of her right of privacy, portraying her in a false light, disclosure of private facts, and intentional and negligent infliction of emotional distress.
Based on the cases we read, this should have been an open and shut case. However, Ms. Amirmotazedi argued that she was brought into the RWP fold on a night that the housemates had "fed her" eight to ten drinks. It was only after she was sufficiently intoxicated that RWP's producers asked her to sign the short-form contract. In her complaint, Ms. Amirmotazedi pointed to the fact that she is "small-framed" to support her claim that she could not form the requisite intent to contract with RWP. RWP filed a motion to dismiss the case, and the California Superior Court denied it. The case settled.
In 2015 we obtained a copy of the following contract from an individual who appeared briefly in entertainment work-out guru Jillian Michaels' life while she was shooting her reality television program "Just Jillian." The show's producers sought a signature on the contract after the show had taped and while it was in the editing process. The waiver language closely tracks that of the RWP full and short-form contracts.
Consider, would you be more inclined to sign these waivers before, or after the show's producers already had footage of you? That was the dilemma in the Jillian Michaels matter.