Former Real World Reality Star Sues MTV, Shocking Contract Provisions Revealed
Reality TV star Tonya Cooley has brought a lawsuit against MTV, Bunim/Murray Productions, Kenneth Santucci, Evan Starkman and others alleging she was victim to sexual abuse during the Thailand season of the The Real World/ Road World Challenge. Cooley filed a complaint with California’s Department of Fair Employment and Housing seeking unspecified damages for unlawful termination, harassment, failure to prevent discrimination or retaliation, retaliation and sexual assault. A central question revolving around the suit is whether MTV and the producers can be held liable for Cooley’s alleged sexual assault by other male cast members.
Before the cameras start rolling, reality stars must sign extensive contracts. These contracts essentially release the producers from any liability if a cast member is harmed in any manner. Eric Goldman, assistant professor who teaches contracts at Santa Clara University’s law school, discussed the “reality” of reality TV star contracts with CNN Entertainment. Goldman stated that “a typical contract includes ‘100 reasons why you can’t sue . . . . If you’re creative enough to come up with the 101st reason, you can’t sue . . . for that either.'” Goldman concluded that “[t]hese contracts are usually all-encompassing in their efforts to get their participants to waive rights to release claims.”
The Village Voice obtained a standard Real World Cast-Member contract demonstrating some shocking provisions such as:
- Participants may die, lose limbs, and suffer nervous breakdowns
Participants may be humiliated and explicitly portrayed “in a false light.”
If a participant contracts AIDS or other sexually transmitted diseases (“gonorrhea, herpes, syphilis, pelvic inflammatory disease (PID), Chlamydia, scabies (crabs),’hepatitis, genital warts, and other communicable and sexually transmitted diseases or Pregnancy; etc”) while filming, MTV is not responsible
Interacting with other cast members carries the risk of “non-consensual physical contact” and should a participant contract AIDS or any other sexual transmitted disease during such an interaction, MTV is not responsible.
Participants grant the Producer blanket rights to participant’s life story. The Producer can do pretty much anything they want with life story, including misrepresent it.
Participants cannot change their physical appearance during filming, without the Producer’s express permission
There is no doubt that these provisions are shocking but if Cooley seeks to have them voided, will a California court find them unconscionable? The concept of an unconscionable contract is essentially an equitable doctrine that protects people from contracts that are legal but reprehensible. It will certainly be an uphill battle for Cooley to persuade the court that the provisions of the contract are unconscionable. Courts rarely find contracts unconscionable. Generally, to find a contract unconscionable the plaintiff must demonstrate absence of a meaningful choice and that the terms of the contract unreasonably favor the party who sets them.
In Cooley’s case both elements of unconscionability seem to be lacking. First, Cooley was not in a situation where there were no other alternatives. Cooley was in no way forced to be a participant on the Real World. This certainly was not her only option to earn a living. Second, the terms of the contract, although shocking, are not unreasonably favorable to MTV or the producers. For one, Cooley stands to benefit substantially from being on the Real World and subsequent spinoff productions. She was paid to be on the show and gained notoriety for her participation in the shows. Furthermore, MTV has some justification for the terms provided in the contract. These contracts must be comprehensive to obtain informed consent to all the possible scenarios reality TV presents. The nature of reality TV is that scenes are unscripted and undeveloped, therefore the contract functions to inform participants about what they are getting themselves into.
Cooley’s alternative legal strategy is to sidestep the contract provisions by claiming she was an employee of MTV. If considered an employee, Cooley would be given the benefit of California’s strict labor laws. A major hurdle Cooley faces with this strategy is that the contract she signed stipulates that she is not an employee. However, the investigation into Cooley’s employee status will not stop at the contract. The Court will investigate the details of Cooley’s participation in the Real World to determine whether Cooley was an actual employee.
According to the Third Restatement of Employment Law, a person is considered an employee if (1) the person acts, at least in part, to serve the interests of the employer, (2) the employer consents to receive the person’s services, and (3) the employer’s relationship with the person effectively prevents the person from rendering services as part of an independent business. First, Cooley’s participation on the Real World clearly served the interests of MTV and the producers. The filming of all participants is the main component to creating the reality TV show. Second, MTV and the producers consented to having Cooley as a participant on the show as evidenced by the contract she signed.
The last branch of the Restatement’s employment test is the most interesting. The relationship between MTV and the producers, created by Cooley’s contract, seems to obstruct her ability to perform as an independent TV personality/star. Cooley’s contract prevents her from appearing on other productions or participating in any way with any other television, internet, or cable programming, commercials, radio programming, or in any print media or other media outlet without the Producer’s approval. Furthermore, the contract provides that the producer holds the authorship and copyright to every photograph, email, website, sound or video recording, and documented performance created in relation to the program. Also, the contract stipulates that the producer be granted the first opportunity and right to negotiate terms and conditions of Cooley services with respect to any projects she pursues in connection to music, television, and/or its ancillary products. Basically, the producers can reap the benefits of any fame Cooley receives as a participant on the show.
With that said, Cooley’s lawsuit will be decided by a California court based on California labor law, not the Restatement. As reported by the Hollywood Reporter, Maribeth Annaguey, a labor litigation lawyer at Liner Grode, says that: “The test for employment is an intensely factual one,” and a key question in determining Cooley’s employment status is “[whether] the alleged employer ha[s] the right of control, whether exercised or not, over the alleged employee, both with respect to how the alleged employee performs whatever the services are as well as with respect to having the ability to have the employee perform other services while employed?”
The review of the contract provisions will have a significant impact on reality TV series. If the provisions are found unconscionable or Cooley is found to be an employee, reality shows may no longer be able to generate such unimaginable veil of liability protection.