Jon Gosselin will face tough legal hurdles if he chooses to stay in the entertainment business.
There will be no “Jon Minus Kate” for the soon-to-be ex-husband — at least not without a spirited court battle from TLC and its parent company, Discovery Communications.
Like most reality-show players, Gosselin signed his entertainment career away back in 2008, when he affixed his signature to release papers for “Jon & Kate Plus 8.”
As reality has become TV’s dominant programming genre over the last decade, producers and their lawyers have expanded and refined their release forms into voluminous, all-encompassing documents that leave no legal avenue unbarricaded — for the producers.
“These people in essence sign everything away,” conceded Kent Weed, president of A. Smith & Company, which produces reality series including “Hell’s Kitchen” and “I Survived a Japanese Game Show."
(All excerpts are from a "Real World" contract; to read the whole contract, click here.)
Concerned that the editing made you come off like a total tool? Tough. Virtually all reality productions make you surrender rights to your “appearance, poses, movements, voice, statements, conversation, sounds and musical compositions,” according to one contract. (To see a general release agreement, click here.)
Want to leave the show for any reason? You probably also signed a long-form release that mandates that you go on camera and deliver an explanation.
Convinced that series producers have conspired to keep you from winning? Well, you legally acknowledged that the producers own the game, and they can make it turn out any way they want.
And sexually transmitted diseases? Dude, they’re your problem.
“You want a complete release of liability from anything that could arise on the show,” said Greenberg Traurig LLP attorney Steven Katleman, who represents several reality producers, including A. Smith & Company. “You’re dealing with the public. People come up with all kinds of claims.”
“The agreements are daunting,” agreed J.D. Roth, the producer behind such shows as “The Biggest Loser” and “Beauty and the Geek.”
But some wonder if the contracts, while protecting producers, are so onerous for contestants as to leave them vulnerable to exploitation. And contestants have precious little leverage.
"I’ve never seen one contract that didn’t include more than the producer ever needed — and it’s next to impossible to push back, since they can always put someone else on the show,” Rob Rader, an attorney with Mitchell, Silberberg & Knupp who has represented several reality show producers, told TheWrap.
Typically, professional talent appearing on reality shows have transactional attorneys to look over their agreements. That’s not usually the case, however, with a regular Joe who’s just happy to be on TV — and not thinking about the consequences of legal bondage.
"We wouldn’t typically represent some guy off the street who was going to be on ‘American Idol,’" says Greenberg Glusker’s Matt Galsor, who has repped a number of celebrity clients on reality shows. "Typically, those guys don’t have representation."
Ever since the first cycle of “Survivor” kickstarted reality’s ascent to the top of the TV genre food chain back in the summer of 2000, litigation has been a constant. In fact, Stacey Stillman, a contestant on that seminal first “Survivor” cycle, sued producer Mark Burnett and network CBS, alleging they conspired to cheat her out of the show’s million-dollar prize.
And Discovery has already sued Jon Gosselin for his allegedly paid appearances on “Entertainment Tonight” and “The Insider.”
“We live in a very litigious society, and a lot of times people are very unhappy with how they’re presented on camera,” Katleman told TheWrap. “The networks and producers would be very foolish not to protect their investment.”
Working to protect some of the top producers in the reality television business, Katleman’s job is help oversee one of the more rigorous legal processes in Hollywood, as he works to strip a never-ending line of wannabe contestants of as many rights and as much legal recourse as he can dream up before they’re put on camera.
First and foremost, virtually all reality show releases seek to ensure that a contestant won’t sue because they don’t like the way he or she is portrayed.
Typical legalese will state something to the effect of, “I expressly release you, and your agents, employees and representatives, from any and all claims which I have or may have, including without limitation, invasion of privacy, right of publicity, defamation or any other cause of action, arising out of the production, duplication, broadcast, exhibition or other exploitation of my performance.”
Three years ago, this legal language was put to the test, when a number of folks lampooned in Sacha Baron Cohen’s “Borat” sued Fox and the producers for defamation and fraud. Their claim was that they signed a release to appear in a foreign news program, not an American film satire.
After combining several individual cases into one class-action complaint, a federal judge ruled in favor of the filmmakers, explaining that the broad language of their release enabled them to do as they wished with the plaintiffs’ names and likenesses.
Personal injury is often covered, too. Particularly for shows involving stunts or any kind of physical activity, “you want to make sure you go into excruciating detail about everything that could happen to them,” Katleman said.
“If they get hurt, we’ll help them and provide them treatment,” added “Hell’s Kitchen” producer Weed. “But you can’t come back and sue us for $1 million just because you burned your hand on a cooking show. This is basically making people responsible for themselves.”
Meanwhile, in addition to legalese covering confidentiality (i.e., you can’t post the winner of the game on Twitter or Facebook before the show airs), as well as the rules of the contest, prize winnings and taxes, a plethora of specialized legal language has evolved over the years, especially for shows that involve cohabitation.
On “The Real World,” for example, contestants must sign a clause stating, “If I choose to engage in consensual sexual behavior or intimate contact with any such person, I do so voluntarily and knowingly, and I assume the risk that by engaging in such activity, I may contract certain sexually transmitted diseases.”
According to “Real World” executive producer Jon Murray, the show has employed extensive background checks and legal waivers since its reality-genre pioneering days back in the early 1990s.
“We’ve always wanted to be able to trust the people we’ve had on the show,” he said. “It’s just become part of the process.”
While they want to protect themselves – reality producers pay hefty insurance premiums that can account for as much as 10 percent of their budget – they also face pressure from networks and big media conglomerates to maximize indemnity.
Reality producers say the headline-making case last summer of Ryan Jenkins, a former contestant on VH1’s “Megan Wants a Millionaire” accused of a grisly murder who then killed himself, has had a huge impact on the business.
Everyone is more skittish these days.
“What we’re finding is that our list of deliverables to the networks is becoming a lot longer,” noted reality producer Scott Sternberg.
Still, despite the broad language, a clever plaintiff’s attorney can still launch a case.
According Lowenstein Sandler attorney Matthew Savare, the releases usually way over-reach. For example, no amount of legal language is going to protect a producer and a network if gross negligence is easy to prove.
"A lot of times, these things aren’t enforcable as drafted," he noted.
In fact, in a statement issued last week after client Jon Gosselin was sued, attorney Mark Heller declared TLC’s release “unenforceable” because Gosselin didn’t have an attorney present when he signed it.
“No matter what you draft, someone will still sue,” noted Rader, speaking generally. “It’s relatively cheap to start a lawsuit.”
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