Reality show participants: employees or independent contractors?

Publication: Employee Relations Law Journal

Publication Date: 22-JUN-06

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COPYRIGHT 2006 Aspen Publishers, Inc.

The author suggests that, in most instances, courts should categorize reality show contestants as employees due to the hidden yet prevalent amount of control that reality show producers and studios exercise over the participants.

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"I find television very educating. Every time somebody turns on the set, I go into the other room and read a book."

--Groucho Marx (1890-1977) (1)

"Television! Teacher, mother, secret lover." (2) What did we ever do before the existence of TV? Television is everywhere--in living rooms, bedrooms, restaurants, airports, and cars. The tentacles of television have even penetrated into the realm of our public bathrooms--strategically positioned above urinals for the viewing enjoyment of the bathroom occupants! (3) Study after study reveals the massive impact that television has had on our lives, the lives of our youth, and the demise of our overall health. (4) The act of watching TV has turned into something of a sport for many American families. According to statistics compiled by the University of Michigan, "in a typical American home, the TV set is on for over seven hours each day." (5) It is no wonder that thousands of aspiring stars seeking fame, fortune, and notoriety, have flocked to Hollywood to pursue their dreams of becoming the next Brad Pitt (6) or Cameron Diaz. (7)

Reality television has given stardom seekers another outlet for making it in the business. The first show accredited to spawning the concept of reality television aired in the 1940s; however, more recently, reality television programs have saturated America's airwaves with the airing of such shows as MTV's The Real World in 1992 and Survivor in 2000. (8) Americans have fallen in love with this raw, unscripted drama and producers reap maximum benefits through low production costs and through-the-roof ratings. (9) With the explosion in the popularity of reality TV, Hollywood has become home to a different genre of aspiring stars in search of fame.

In addition to these new stars, reality television has also spawned a variety of new legal problems associated with the legal status and relationship of the participant with the producers to whom they provide their "services." Producing shows in the reality show genre gives producers significant legal advantage over the participants because reality show participants waive certain rights that their counterpart sitcom or soap opera stars have the ability to assert. (10) Reality show participants fall into a grey area of the law somewhere between the classification of an employee of the studios and an independent contractor. (11) This oversight has presented a variety of legal issues ranging from income tax issues, to workers' compensation issues, to issues involving sexual harassment in the workplace. Lacking a distinct classification as either an employee or independent contractor, pits these new Hollywood celebrities out in left field without much guidance as to how to defend themselves against the studio which has contracted much of their rights away in their one-sided, exculpatory adhesion contracts.

This article discusses the differences between the rights of an employee and independent contractor in tax liability, workers' compensation and sexual harassment areas and analyzes the different outcomes that a reality show participant ,night attain in a court of law depending on the characterization given to them by the court. The focus then turns to whether reality show participants should fall into the category of either employees or independent contractors by applying the common law test for determining an employee or independent contractor relationship. This article also assesses the legality of participant waivers and limitation of liability provisions that contestants must sign in order to participate in the show. Finally this article proposes that in most instances, the courts should categorize reality show contestants as employees due to the hidden yet prevalent amount of control that reality show producers and studios exercise over the participants and that the one-sided, exculpatory adhesion contracts signed by the contestants violate public policy.

BACKGROUND ON REALITY TELEVISION

The characteristics of reality television include using average people over professional actors in an unscripted setting as the producers capture the drama of real life events unfolding in an often stressful and at times chaotic environment. (12) Although the concept of reality television has been around for a while, the explosion of interest in reality television escalated in 2000 with the airing of CBS's Survivor. (13) The popularity of this particular genre of programming is illustrated in the following statistic from Nielsen Media Research:

reality show's account for about 56% of all of American TV shows (both in cable and broadcast), and also accounts to about 69% of all of the world TV shows (in cable and in broadcast). (14)

The genre of reality television encompasses a variety of subcategories including but certainly not limited to, celebrity reality shows such as MTV's Newlyweds with Nick Lachey and Jessica Simpson, or The Osbornes and Celebrity Mole. This subcategory stands up to noncelebrity reality shows like MTV's The Real World, CBS's Big Brother and VH1's the Surreal Life. Another subcategory includes game show reality programs such as Wheel of Fortune or Jeopardy. From this subcategory comes the variation that society has fallen in love with where shows such as Survivor and The Amazing Race come into play. Another subcategory of the reality show genre would include hidden camera shows such as Surpirse, You're on Candid Camera and MTV's Punk'd. These represent only a few of the vast amount of different types of reality shows. (15) However, the important things to remember in distinguishing reality show from sitcoms, soap operas, and other types of non-reality shows, is the lack of a script and the lack of control by the producers and directors.

Despite the popularity of reality television programs, many critics feel that reality television lacks a key element--reality Many feel that the "reality" of reality television has turned into a more scripted and controlled type of programming. MTV's Real Road Seattle participant, Irene McGee, has toured the United States giving speeches at colleges discussing media manipulation and the falsehoods of reality television. (16) Unfortunately there have been few participants willing to come forward and discuss the actual "realness" of reality television because of their pre-participant contracts limiting their rights to discuss certain aspects of the show. However, it doesn't take much insight to realize that the questionable nature of reality television stems from the fact that many producers will design the format of the show in such a way as to assert a great deal of control over the outcome of the events. Producers have the ability through editing strategies to manipulate the footage in such a way as to portray participants in a certain light; some as villains, others as heroes. Furthermore, "producers design scenarios, challenges, events and settings to encourage particular behaviors and conflicts." (17)

Reality television participants provide entertainment at an expense of their own legal rights. While non-reality stars typically have the representation, guidance, legal assistance, and bargaining power of qualified attorneys to support their interests in the creation of their contracts, reality show participants often times do not have that same luxury. (18) Instead, they eagerly sign one-sided adhesion contracts constructed by the studios with hopes of one day achieving the same notoriety and stardom as Kelly Clarkson, Trista Rehn, and Ryan Sutter. (19) Unfortunately, in most cases, not only do participants fail to reach a high level of notoriety, but they also find that they have little authority to assert valid legal rights arising out of situations where their services were given in exchange for something because of their previous contractual commitments.

SURVIVOR

The concept is simple: abandon a group of 16 average Americans in some of the most harsh and unrelenting environments on the planet, far from the comforts of Western civilization. (20) Partition the group into opposing "tribes" and, every three days, pit them against each other in two different challenges; one whose prize results in a reward (often of an item of luxury or a much longed-for meal), while the winning tribe of the other challenge receives immunity from Tribal Council. The loser of the immunity challenge must trudge to Tribal Council where the members of that tribe vote one of their own out of the competition. About halfway through the competition, the focus of the game shifts from a team-oriented game into one where each individual must fend for himself or herself and compete against former tribemates to win immunity from the impending Tribal Council. All of this occurs with the hope of making it to the final Tribal Council where a jury of voted-off castaways casts the final votes for the ultimate survivor and the winner of the $1 million prize. (21)

Survivor's commencement into primetime television in 2000, resurrected the reality show genre by casting ordinary, average and nonfamous Americans as the show's contestants to battle it out for a cash prize. (22) This idea of pitting ordinary Joes up against each other in a competitive setting (often controlled and manipulated by the producers of the show) caught on and spawned a craze of new shows including The Amazing Race, Fear Factor, American Idol, The Bachelor, and many more! Just about anything you can think of has resulted in a reality show. (23) This renewed craze has given ordinary people the chance to reach for stardom, and for some, to attain their share of more than just their 15 minutes of fame. For example, Hunter Ellis from Survivor Marquesas, landed the hosting job for the History Channel's reality show, Tactical to Practical and now hosts the History Channel's, Man, Moment, Machine. (24) In addition, the success of American Idol has fostered the beginnings of promising careers for many Idol finalists, as illustrated by USA Today's Elysa Gardner:

Consider the immediate name...

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