Article by Neville Johnson and Douglas Johnson
Release and consent agreements are frequently used by producers in the film and television business to obtain consent to film and record participants, to commercialize the participants' contributions, and to prevent litigation. Producers often rely on free release forms available for download online, but how can they be sure that these online forms provide sufficient protection, especially in the areas of reality television or documentary type films, where participants may be por- trayed in an unanticipated manner and resort to litigation as a remedy? To assure proper protection, producers and their attorneys should include the following six clauses in their release and consent agreements: (1) preamble; (2) consent; (3) assignment; (4) waiver; (5) jurisdiction; and (6) irrevocability. Furthermore, producers should keep the release short and simple, and allow participants adequate time for review.
Clause 1: Preamble
Preambles generally identify the type of agreement, the date the agreement is signed, and the parties to the agreement. In a release, the preamble should include an acknowledgement regarding consideration and state that the participant is receiving either a fixed sum or an opportunity to appear in the producer's project in exchange for agreeing to the terms of the release. This makes clear to the participant that an agreement is being formed and that consideration is exchanged.
Clause 2: Consent
The release should also contain a consent clause, which makes clear that the participant agrees to be filmed and recorded. This clause should also include a broad description of the project to be filmed. The following is an example of a broad description that was used in the famous release agreement for Sacha Baron Cohen's film, Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (hereinafter Borat): “participant agrees to be filmed and audio taped by producer for a documentary-style film.” Using a broad description such as “documentary-style film” prevents the participant from later claiming that he or she was not aware of the type of project in which he or she would appear. Simultaneously, a broad description also prevents the producer from having to commit to a specific genre or category.
Clause 3: Assignment
One of the most crucial clauses in a release agreement is the assignment of rights. This clause grants the producer the right to use a participant's image, name, likeness, and any other rights needed to include the participant in the project, and also grants the producer ownership rights over all of the participant's contributions. These granted rights serve two primary functions: (1) They prevent the participant from claiming that the producer misappropriated, infringed, or violated the participant's rights of publicity or privacy; and (2) they prevent the participant from claiming an ownership interest or profit participation rights in the project. Therefore, the assignment clause must broadly assign all of the participant's rights in the project to the producer and make clear that the participant owns nothing. Drafters should be especially careful when preparing this clause, and should ensure that the assignment covers all intellectual property rights as well as all publicity rights, and mentions all of the possible types of uses, including commercial use, advertisement, and promotion. Moreover, the assignment clause should also grant the producer any rights, including derivative, ancillary, and product rights.
Clause 4: Waiver
A waiver of claims clause should also be included in the release to prevent the participant from later suing the producer for claims arising from the participant's involvement. In addition to including a general waiver covering all possible claims, the producer probably should list every claim that could be anticipated, including: (1) rights of publicity infringement or misappropriation, (2) copyright and trademark infringement, (3) invasion of privacy, (4) misappropriation of idea or concept, (5) defamation, libel, or slander, and (6) fraud. Having the participant waive all anticipated claims will require the participant to have the release rescinded by the court in order to bring any of the listed causes of actions, which would be quite challenging for a litigant to do.
When it comes to reality shows, we have seen many agreements that purport to waive intentional torts. These clauses will not survive, as they violate the principle that one cannot have a contract the purpose of which is to exempt one from his or her own fraud or willful injury to the person or property of another.1
Likewise, we saw one of the Borat releases at the time of controversy, which contained a clause that said essentially: “You cannot sue us for fraud even if we are deceiving you as you sign this agreement.” We don't think any court would uphold such a clause.
Clause 5: Irrevocability
An irrevocability clause further limits the producer's liability by stating that the agreement is irrevocable, thereby preventing the participant from arguing that the agreement was previously terminated. This clause once again requires the participant to have the court rescind the agreement before bringing any claims that fall outside of the four corners of the agreement.
Clause 6: Jurisdiction
The release should also include a jurisdiction clause, which specifies the state law governing the agreement and any arising disputes, as well as a specific forum for bringing claims if a claim is brought. Before selecting a jurisdiction, the producer should consider both the practical and legal consequences of selecting the governing law and forum. From a practical standpoint, the producer should select a convenient litigation forum, such as the state and county where he or she resides. From a legal standpoint, the producer should also consider selecting a state with favorable laws in the event he or she is sued for claims anticipated. For example, many releases include a New York choice of law clause, because New York does not recognize either a common law right of privacy or a common law right of publicity, making it especially difficult for a participant to sue a producer for such claims in New York. Some releases provide that any dispute be sent to arbitration, and the prevailing party be entitled to attorneys fees.
The Borat Cases
The Borat cases are perhaps the most notorious cases involving release and consent agreements. In Borat, a fictional journalist from Kazakhstan interacted with individuals along his trip across America. These individuals claimed that they were informed that they were being filmed for a documentary on American culture, which was going to be shown in Kazakhstan or Belarus.
However, the worldwide release of the film triggered the filing of several lawsuits by the participants in the film against the producers and distributors. The individuals alleged that they had been deceived and had consented to being filmed for something different than what was actually released. Some of these cases were dismissed on motion by the court.2 Some were, however, dismissed by the plaintiff, which infers that a settlement was reached.3
Keep It Short and Simple
In addition to including the abovementioned clauses, it is important to keep the release short and easy to understand, so that the participant cannot later argue that a layperson could not have reasonably understood what was written. Keeping the agreement short and simple would convince a judge that a reasonable reader could have easily understood what he or she was signing. It is recommended to keep the release one page long and avoid the use of legalese. If the participant is provided with a lengthy document containing complex and ambiguous language, the court may find that a layperson cannot reasonably be expected to fully comprehend the release, and allow the release's complexity to be used as a factor in favor of the participant's claim.
We recently approved this very short release, so as not to alarm the person signing the agreement and possibly necessitating the hiring of counsel, which could cause additional delay and expense:
I, _____________________________ (person giving the release), am aware that Talent is a social media influencer and talent with broad reach on social media and other public and private media platforms. I hereby assign and grant Company and its affiliates the right and permission to use and publish photographs/film/videos/electronic representations and/or sound recordings of me; my name, voice and likeness in perpetuity and I hereby release Talent and his/her affiliates from any and all liability from such use and publication via any media known or unknown today without my prior approval in any way. I hereby authorize the reproduction, sale, copyright, exhibit, broadcast, electronic storage and/or distribution of said photographs/film/videos/electronic representations and/or sound recordings without limitation at the discretion of Talent and his/her and her affiliates and I specifically waive any right to any compensation I may have, in any form, for any of the foregoing now and in perpetuity.
Guardian: _________________________________________ (If under the age of 18)
4 Relationship to minor: ______________________________
Get Proper Consent
Ensuring that any participant has sufficient time to review and sign any release is important. Reality show releases usually are many multiple pages with dense contractual provisions and so complex that an attorney should be consulted. Thrusting a waiver in front of a participant in a production without adequate time to review the document is questionable, and may lead to a successful argument that consent was insufficiently given.
See California Civil Code Section 1668; N.Y. U.C.C. Section 2-302; Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384-85 (“…[A]n exculpatory agreement, no matter how flat and unqualified its terms, will not exonerate a party from liability under all circumstances. Under announced public policy, it will not apply to exemption of willful or grossly negligent acts….”); Dieu v. McGraw, No. B223117, 2011 WL 38031 (Cal. Ct. App. Jan. 6, 2011).
Cases in which the Judge granted a motion to dismiss include John Doe v. One America Productions, Case No. SC 091723 (LASC) (Nov. 9, 2006), Lemerond v. Twentieth Century Fox Film Corp., 2008 U.S. Dist. LEXIS 26947 (S.D.N.Y. Mar. 31, 2008), Martin v. Mazer, No. 08-CV-01828 (S.D.N.Y. Feb 22, 2008), Psenicska v. 20th Century Fox, No. 07-CV-10972 (S.D.N.Y. Dec. 3, 2007), Streit v. 20th Century Fox, 08-CV-01571 (S.D.N.Y Feb. 15, 2008).
Cases in which the plaintiff dismissed the case include Cedeno v. 20th Century Fox, No. 07-CV-07251 (S.D.N.Y. Aug. 14, 2007), Johnston v. One America Productions, No. 07-CV-00042 (N.D. Miss. Mar. 20, 2007), Todorache v. 20th Century Fox Film Corp., No. 06-CV- 13369 (S.D.N.Y. Nov. 20, 2006).
California Civil Code Section 3344 provides that parents can sign on behalf of their minor children with regard to the right of publicity; otherwise the contract requires court approval. Cal. Civ. Code § 3344(a) (“…Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof….”); see also Faloona by Fredrickson v. Hustler Magazine, Inc., 799 F.2d 1000 (5th Cir. 1986).
Doe v. Gangland Productions Inc. is instructive. 730 F.3d 946 (9th Cir. 2013).
Neville L. Johnson and Douglas L. Johnson are entertainment attorneys at Johnson & Johnson LLP in Beverly Hills, CA. Visit them at www.jjllplaw.com.
Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Spring 2018, Vol. 29, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.