Anyone who has worked in reality TV knows that much behind-the-scenes work can be involved in creating drama and comedy that are lacking in the real lives of reality TV show participants. I’ve represented both reality show producers and reality TV stars, and can say there’s much content in reality shows that is fictitious — or at least constitutes a form of induced reality. For example, participants (in other words, characters) are prodded into being villains or buffoons. They are tricked and trapped, all in the name of good entertainment.
A&E’s hit cable TV show “Storage Wars” –- which revolves around buyers of storage lockers who hope to find the buried treasure of valuables inside the lockers — has been accused of being fraught with dishonesty and manipulation by various kinds of deceitful behavior, including planting valuables in the lockers. The accuser: David Hester, a key participant in the show who is a longtime buyer of storage lockers. The court papers, filed by his attorneys in December 2012 in California State Court against A&E and others, claim that “A&E regularly plants valuable items of memorabilia”. Further, Mr. Hester claims that the producer “also manipulates the outcome of certain auctions by paying for storage units on behalf of the weaker cast members who lack both the skill and financial wherewithal to place winning bid
The parties are at war over many claims, including a breach of contract, an allegation that the “salting and staging” of false material violates the federal Communications Act of 1934, wrongful termination, and trademark issues. However the issue that’s attracted the most attention is the “unfair business practices” claim.
The business and legal context of these shows is one of appearance over reality. Many reality show participants will sell their souls for TV exposure, and they are perfectly willing to sign anything in order to have a chance for fame. Many participants feel differently after the shows are aired, but of course it seemed like a good idea at the time. The contracts offered to participants are very aggressive in favor of the producers — who enjoy enormous leverage — and contain terms such as long duration, loss of merchandising rights (for example, licensed products bearing the participant’s name and likeness can be sold), no approval rights, no right to sue for defamation, low royalties from endeavors such as merchandising, and high (even seven figure) penalties for the participant (sometimes their relatives, too!) for disclosing plot elements before the first showing
The Hollywood Reporter wrote that A&E counters with the allegation that Mr. Hester “was unhappy with how contract negotiations were going, so he concocted a ‘tabloid-worthy drama’ filled with ‘inconsistencies in his exaggerated self-portrait.’” http://www.hollywoodreporter.com/thr-esq/a-e-responds-allegation-storage-416006
The case is taking fascinating twists and turns, including whether or not the First Amendment protects A&E from an injunction being entered to prevent airing of the show.
So, is a reality show that doesn’t exactly depict reality the way it would be “in nature” if those the producers and camera crews weren’t present constitute an unfair business practice? Or is reality TV really just entertainment (true or false) that we should watch and enjoy for being just the way it is – or maybe only as it seems to be?
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.