Reality Television Contracts

How to Negotiate the Best Deal

Battista Paul, Hayley Hughes

• Publisher: Allworth
• Year: 2016
• Print ISBN: 9781621534860
• eBook ISBN: 9781621534969
• Topic: Media & Performing Arts
• Subtopic: Small Business

Reality television is the growth area of television today. Individuals around the country want to be involved, whether in front of the camera or behind, and those who want to produce reality television seek to attract talent—maybe from the local beauty salon or perhaps the rodeo, extermination company, or trucking company—to begin taping their own "sizzle" reels to pitch to Hollywood production companies. At long last, here is a book that explains and educates those involved in reality television (and those who hope to be involved) regarding the terms found in these agreements and how best to negotiate them. This guide also includes: •A brief history of reality television
•A breakdown of how ideas develop and of the "players" involved
•Reviews of and comments on agreement templates for all parties in the development and production stages
•"Deal point" checklists to help stay on trackDirected at attorneys who currently represent clients in the industry or would like to add reality television to their law practices, at reality television producers or those looking to break into the scene, and at all reality television participants, the contracts included in this book will be an indispensable resource all the way!Allworth Press, an imprint of Skyhorse Publishing, publishes a broad range of books on the visual and performing arts, with emphasis on the business of art. Our titles cover subjects such as graphic design, theater, branding, fine art, photography, interior design, writing, acting, film, how to start careers, business and legal forms, business practices, and more. While we don't aspire to publish a New York Times bestseller or a national bestseller, we are deeply committed to quality books that help creative professionals succeed and thrive. We often publish in areas overlooked by other publishers and welcome the author whose expertise can help our audience of readers.

PART I:

Background of Reality Television

1

Very Brief History of Reality Television

The history of the current forms of reality television is not very deep; it can be traced back to the year 2000, when the show Survivor aired. The mainstream success of that show spurred networks to add reality television to its broadcast offerings. As of 2015, reality television programs are aired on over fifty different channels. However, reality television had been slowly developing for a number of years before Survivor brought the genre to the mainstream. The format of capturing “real” people in “real” circumstances dates back to the 1940s and 1950s. Perhaps two of the more successful shows during that time frame were Candid Camera in the 1940s and Queen for a Day in the 1950s. Both shows featured real people in circumstances in which they were themselves, revealing who they were either through their actions or through answers to questions, and thereby creating drama, suspense, or comedy from the results. Both shows generated record amounts of advertising dollars and were aired for many years. There also were successful reality-based shows on television in the 1960s and 1970s, for example: This Is Your Life, Mutual of Omaha’s Wild Kingdom, Seven Up!, An American Family, The Undersea World of Jacques Cousteau, and Family.

This is an appropriate place to address the definition of the genre of reality television as applied in this book. The agreements commented on in this book are applicable to the reality television genres other than talk shows (for example, The View), traditional game shows (for example, The Price Is Right), and news programs (for example, Face the Nation). The agreements provided are a basic format used in reality based programs in sub-genres such as “competition” shows (for example, The Apprentice), “makeover/improvement” shows (for example, The Biggest Loser and Restaurant: Impossible), “hidden camera” shows (for example, Punk’d), and “soap opera” shows (The Real World, The Osbournes, Keeping Up With The Kardashians, Little Couple, and The Real Housewives). The agreements are basic and provide a framework for understanding what is encompassed in reality-based contracts, but each show has its own unique rules and issues that require an attorney to draft language that is specific to each show. The attorney often works closely with the producers of the show to understand and to incorporate the specific language required for each show.

Reality television continued its growth in the 1980s, when a new reality genre emerged; the “professional” procedural genre. Cops debuted and immediately became a hit show that has aired continuously for over twenty-five years. The show is based on camera crews following police officers doing their jobs, including interacting with and apprehending criminals. The Real World debuted in 1992 and had broadcast its thirtieth season by 2015. This show, reportedly modeled after the PBS series An American Family, is credited with starting the genre of placing strangers together to live and interact while the cameras capture everything that happens. Reality television was definitely growing, but it wasn’t until the late 1990s and early 2000s that it developed beyond a niche genre to capture a large, mainstream audience. Successful shows were no longer just aired on niche cable channels but were found on the largest top networks such as CBS, NBC, ABC, and Fox. Early successful shows included Survivor, Big Brother, The Amazing Race, and American Idol, which were quickly followed by The Biggest Loser, The Apprentice, Dancing With the Stars, America’s Got Talent, Last Comic Standing, and Hell’s Kitchen. It should be noted that although most reality shows are not aired on one of the big four networks (CBS, NBC, ABC, and Fox), there are many more opportunities to bring a reality show to one of the other approximately forty-five networks that air reality shows. This is simply because there are more of these channels and also because a show doesn’t need to reach a large, mainstream audience. The big four networks certainly have aired successful reality shows since 2000, but each network also has aired at least thirty reality shows in that time that have not lasted more than one season. It is very difficult to secure a deal with any network to produce and air a show, and it is even more difficult to develop, produce, and air a reality show that will last more than one season.

The networks that are not one of the big four networks have also produced and aired successful reality shows since the beginning of 2000. For example, A&E network has aired Duck Dynasty, Bravo network has aired The Real Housewives, E! Network has aired Keeping Up with the Kardashians, MTV has aired The Real World and Jersey Shore, UPN has aired America’s Top Model, and TLC network has aired Jon and Kate Plus 8. These networks have also aired hundreds of other reality programs since 2000. For all of the networks, there are thousands of reality programs that are developed for every one show that is aired, so development is where much of the reality television work occurs for producers and their attorneys.

THE PLAYERS

The process of developing a reality television show begins with developing an idea. Ideas are developed by producers into treatments, loglines, one-sheets, episode summaries, season structures, and often the production of a sizzle reel. Loglines are a one- or two-sentence pitch of the show, and treatments are a four- to ten page detailed description of the elements that comprise a show. A one-sheet is a one- to two-page summary of the show, and the episode summaries and season structures are, as their names indicate, a summary of each episode of the show and the main developments of a season. A sizzle reel is a short, edited presentation of a show that may focus on the show elements, the talent involved, other similar shows, edited “scenes,” or a combination of these elements.

Rarely, if ever, do producers pitch or present shows for which they have not written at least a one-sheet, treatment, and logline. Often it is asked what is the best way to legally protect the elements of a reality television show. This is a topic that could be the subject of a complete separate book, so it will not be discussed in detail here. Suffice it to say that it is wise to register all written documents with the United States Copyright Office, and within those written documents to list and describe as many of the specific elements that make up the reality show, also describing the unique ways the specific elements interact.

It is important to briefly describe the process of developing a reality television program, and to also identify the primary “players” involved. Producers, often using their own production companies, work together to develop a reality television program which requires a “collaboration agreement.” A producer very often attaches talent to a reality television program at the beginning of the development process, which also requires the negotiation of and entering into a “talent attachment agreement.” The talent could be a local veterinarian, an exterminator, an interesting personality, and maybe even a recognizable person from television or movies, although successfully attaching a celebrity is more likely to happen for an established, successful reality television producer or production company than someone developing his or her first reality show.

Once a producer has created or engaged others to create a reality show’s logline, treatment, one-sheet, signed talent attachment agreements, and often a completed sizzle reel, he or she is ready to bring the show to third parties in the hopes of moving the show to a successful realization. There is not one path that a reality show follows to reach a successful resolution. The most common next step is for a producer to approach established, successful production companies to pitch the show to those companies. It is not common for a producer without a track record of successful reality television shows to directly approach and convince a network to buy or produce a reality television show, although it has happened. Examples of successful reality television production companies include Bunim/Murray Productions, Eyeworks, Shed Media, T Group Productions, 51 Minds, and Pilgrim Studios. There are also other production companies that may not be as large or successful as the latter companies, but nevertheless are producing reality television content that is currently airing on networks.

If a production company is interested in a show, the producer will negotiate and enter a “shopping agreement,” a “talent attachment agreement” (for producer services), or a “collaboration agreement” with the production company. The production company will then seek the interest of a network, also known as “the people who write checks.” Examples of networks include NBC, CBS, MTV, Bravo, and Animal Planet. The goal is to obtain an order for a minimum of number of episodes of the show by a network, the terms of such order to be found in a “production service agreement.” This brief summary of the parties involved leaves out one of the most important groups of “people who write checks,” that is, the advertisers who pay the networks to place commercial ads during the airing of the reality television show. Producers do not have direct contact with the advertisers, but it is the ability of the producer to create and attach himself or herself to a reality television show that is aired by a network—and which then becomes a “hit” show—that earns large amounts of advertising revenue that will affect the ability of the producer to create more shows and to have more “leverage” to obtain more favorable terms in subsequent reality television agreements. The amount of leverage, or lack of leverage, that a party has to demand more favorable terms is noted throughout the comments to the agreements in this book.

Two other groups of individuals that a producer works with, once a show is ordered for production, are reality show “participants” and “on-air talent.” Participants are the people who have little or no experience appearing on television but who audition to be a participant or contestant on a reality television show. Participants basically have no leverage in the negotiating process, and they are required to sign a lengthy “participant agreement” in which they consent to give the producers many wide-ranging rights. For example, they agree that the producers have the right to invade the participant’s privacy, the right to reveal personal and defamatory information, and the right to engage in other actions such as providing the participant misrepresentations, placing the participant in hazardous circumstances, and many other similar terms. It should be noted that cast members of the MTV reality show The Jersey Shore, and cast members of other hit reality television shows, signed participant agreements containing similar language. Once their shows became hit shows, however, their leverage increased and they were able to renegotiate the terms of their participation. It should also be noted that since the terms of a participant agreement are rarely subject to negotiation—that is, they are basically take-it-or-leave-it agreements—a “Deal Point” checklist has not been included at the end of Chapter 5. “On-air talent agreements” are with individuals who have a certain talent or expertise that a producer wants to add to a show, and they are usually with individuals who have television experience or a special talent that relates to a specific reality show. For example, the host of Dancing with the Stars will most likely have experience in television, and a judge on the show will most likely have experience as a successful dancer and choreographer.

2

“Standard”/“Boilerplate” Terms

Standard terms, also called “boilerplate” terms, are found in reality television contracts. Although these terms are found in all properly drafted contracts, each contract defines each term using slightly different language and each contract will also address different issues under the same heading in each different contract. Therefore, the length of each paragraph under each heading will vary from as brief as a sentence or two in length in a “shopping agreement” to multiple pages in length in a “production services agreement.” For example, the results and proceeds paragraph could be one sentence stating that all work is a “work-for-hire” owned by the producer. On the other hand, it could be multiple pages in which the specific rights that are owned are named and defined, in addition to addressing many other issues. It is common to have shorter paragraphs of standard terms in short form agreements that run from two to ten pages in length. Conversely, agreements such as those with television networks that are fifty to one hundred pages in length contain standard terms and provisions paragraphs that are very detailed, often covering multiple pages.

The standard terms and provisions are areas of negotiation and drafting that are primarily the responsibility of the attorney representing each party. It is not uncommon for an established reality television individual to be represented by an agent, a manager, and an attorney, each providing a different service. It is also not uncommon for established reality television production companies and networks to be represented by business executives and business affairs individuals. Agents, managers, and business executives focus primarily on the details of the show and the basic deal terms of an agreement; for example, the budget, the cast, the services to be provided, the payments for the services and the rights provided, and each party’s on-screen credit. Attorneys and business affairs individuals are expected to understand the legal language in “standard”/”boilerplate” language, and it is their job to negotiate and redraft these terms for their clients. It should be noted that attorneys and business affairs executives often comment on and redraft language regarding the terms that agents, managers and business executives negotiate. Further, feedback from agents, managers, and business executives regarding “boilerplate” language is welcomed by attorneys and business affairs individuals, but most often agents, managers, and executives are happy to leave this task to the attorneys and business affair individuals. Therefore, it is important for attorneys and business affairs people to study and know the specific language “boilerplate” paragraphs in order to be able to redraft such language to their clients’ benefit. However, for efficiency and clarity, the specific language of these “boilerplate” terms is omitted here and replaced with a brief definition of each term and a brief explanation of some of the issues that one should be aware of when negotiating and redrafting such terms.

1) Results and Proceeds/Grant of Rights/Rights: These terms provide language to define the party who owns the rights to the show. Results and Proceeds address the rights that exist when an individual provides services in creating a show. For example, a producer may agree to provide work polishing the episodes of the show—that is, rewriting episodes, assisting in producing a sizzle reel, and otherwise providing services to the development, production, and sale of the show. The language in this paragraph defines those rights and, crucially, states which party owns such rights. The Grant of Rights is language that will specify the rights that each party holds to the show and specifically state that all of those rights are transferred (or will be transferred upon sale or license of the show in the future) to another party. The Rights are often specifically defined according to each medium so there is clarity of the rights that are subject to transfer. The language defining such rights often includes a statement preceding the definitions of the rights that “such ‘Rights’ include all rights to the show, including, but not limited to, the following,” thereafter defining each right in detail.

The importance of having these terms in a reality television contract can’t be overemphasized. Ownership of the intellectual property and all other rights to a show is required to license and sell the show and also to determine which parties are necessary and which parties are expendable. That is, no show can be licensed or sold without the owner(s) of the rights to the show transferring such rights to the licensee or purchaser. As such, the owner of the rights has a leverage position to insist that he or she be included in the licensing or sale of the show, and also has a stronger position to negotiate more favorable terms in negotiations.

2) Representations and Warranties: The parties to an agreement will provide assurances that certain statements that are included in this paragraph are true. For example, individuals providing services or rights to a show will state that he or she: can enter the agreement without violating any third party’s rights, has not entered into a previous agreement that would interfere with providing services or transferring rights to the other party, and is providing material that is original and/or completely owned by the individual and will not violate any right of any other party. Individuals and companies transferring rights of the show to a third party—for example, transferring copyright and trademark rights—also promise that they in fact own all of the rights that are transferred and that there are no liens or any rights existing that can or will interfere with the rights that are provided to the third party. An example of a previous action that would violate these terms is if the party providing services to the show had previously signed an agreement with a different company promising to provide exclusive producing services to that company or promising to give that company the first the right of negotiation to acquire or develop the show—that is, the right to acquire or develop the show before any other third party. It would not be cost-efficient or practical for each party to an agreement to thoroughly investigate whether there was a previous agreement entered that would interfere with the terms of the agreement they are entering, so instead, each party in effect promises in the representations and warranties that there are no hidden problems that could later emerge to frustrate the intent of their current agreement.

3) Indemnification: These terms provide a remedy if one of the “representations and warranties” promised by a party is later violated, which also is called a “breach.” If a representation or warranty is later breached, then the party who is responsible for such breach promises to indemnify the other party or parties in the contract. “Indemnify” is a legal term that basically means the breaching party will have to pay the other party for any and all claims, demands, suits, liabilities, losses, costs, expenses, damages, or recoveries suffered, made, incurred, or assumed by reason of or arising out of any breach of any agreement, warranty, and/or representation made by the party to...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction
• Part I: Background of Reality Television
• Part II: Development
• Part III: Production
• Index