Reality TV: What is the legal status of participants?

Marie Serna, Professor of Law and Tax - September 15th, 2013
Reality TV: What is the legal status of participants?

In confronting the evolution of the media and creative imagination of those in the entertainment industry, the question of the legal status of actors is increasingly raised — particularly in television, where professionals now often act alongside “real people,” who play themselves but based on a script.

Marie Serna ©HEC Paris

Marie Serna has taught law at HEC Paris since 1991. Her research focuses on media law (intellectual property and industrial property), contract law, and labor law, with a (...)

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In confronting the evolution of the media and creative imagination of those in the entertainment industry, the question of the legal status of actors is increasingly raised — particularly in television, where professionals now often act alongside “real people,” who play themselves but based on a script.

THE FILMING OF REALITY: DOCUMENTARY, FICTION, OR GAME?

How can television shows like Temptation Island  be classified? Documentary, fiction, or game? The answer is far from inconsequential. If it is an unscripted show, subject to the developments of the game, there is no relationship of subordination between the director and the participants, so no work contract or payroll taxes. The game ends with a (non-taxable) reward, given to the winner only. Participants who do not want to leave empty handed can negotiate image rights. But the balance of power between an unknown person and a director is rarely favorable to the former. The case of the documentary Être et avoir  (To be and to have ) illustrates the difficulty of qualifying what it means to film reality. The teacher, who filed a lawsuit against the film’s production, was denied the copyright for his classes, image rights, and the status of performer and co-author, although his personality and charisma constituted a large part of the movie’s success.

ARE PARTICIPANTS IN REALITY TV SHOWS ACTORS?

Participants in Temptation Island  are performers under the Intellectual Property Code and entertainers under labor law, says Marie Serna. The explanation is that a performance artist is a person who interprets a “creative work” (œuvre de l’esprit ). As an expression of the personality of the author, such work has a script and makes limited use of spontaneity. It is not subject to the hazards of the game. That said, in 1999, judges determined that a televised game could be a “creative work” (œuvre de l’esprit ) if the concept was based on a dramatization of the competition, with highlights and a plot. Courts did not, however, award the status of performer to participants, given that the spirit of competition negated its artistic nature. Players were seen more as athletes, unless they signed contracts requiring them to submit to guidelines and to act in accordance with directorial decisions.

ARE THEY ARTISTS?

Shows like Temptation Island are constructed. A script is written and participants receive instructions, are interviewed, and undergo tests. Reality TV is thus a “creative work” (œuvre de l’esprit ), according to Serna. Since participants have obligations, receive orders, and failures can be punished, they act based on a relationship of subordination.

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The Intellectual Property Code, which protects “creative works,” regardless of their merit or type, must therefore be applied to reality TV.



The Intellectual Property Code, which protects “creative works,” regardless of their merit or type, must therefore be applied to reality TV. And consequently, under this same code, participants are performers and salaried employees. In Temptation Island, the relationship of subordination was highly significant, says the researcher. Participants had to be constantly available and were unable to leave the site or communicate with the outside world. This failed to recognize limitations in the Labor Code on the availability of people, without which work becomes slavery. The required availability for the filming of this show thus constituted a breach of privacy under Article 9 of the Civil Code.

EMPLOYEES, BUT NOT ARTISTS

Judges recognized Temptation Island participants as salaried employees and limited their subordination but did not grant them the status of artist, which would have placed them within the entertainment category (with all its inherent benefits). The Council of State has given this status, however, to cyclists involved in competitions, notes Serna. The “Route du Rhum ,” a transatlantic sailing race, was also qualified as a live performance, which is a “creative work” (œuvre de l’esprit ), and should thus logically consider its athletes as artists. In brief, the boundary between athletes and artists is blurred. In sports, the aesthetics of performance play an increasingly important role. If soccer players are employees of their club and Route du Rhum  racers are under sponsorship contracts, does the same apply to reality show participants? According to Serna, they need a specific collective agreement.

* Documentary by Nicolas Philibert (2002), in which he follows a teacher and his class of children aged 4 to 11 years in a public school in Auvergne for one school year.

 Based on an interview with Marie Serna and her articles “Legal framework for performers in the audiovisual field” (Recueil Dalloz n°8, 2005); “Temptation island: violation of article L120-2 of the Labor Code” (February 2008, Dalloz blog); and “Temptation island: what is the legal value of the artificial nature of filmed situations?” (May 2013, Dalloz news).

APPLICATIONS FOR LEGAL PROFESSIONALS
APPLICATIONS FOR LEGAL PROFESSIONALS

Intellectual property is the field that is changing the most in terms of the law. Legal action is often taken in this area. Serna’s research provides lawyers with doctrinal elements that they can use in their pleas. For example, Maître Assous, the lawyer of former participants in the show Temptation Island, was able to reclassify their participation in a standard employment contract, partially drawing on Serna’s article “Legal framework for performers in the audiovisual field” (Recueil Dalloz, 2005).

THE STATUS OF ACTORS:
THE STATUS OF ACTORS:

The law has a long history of neglecting actors, musicians, and singers. Only since 1969 have they benefitted from labor legislation, which recognizes their work as salaried employment. The law of July 3, 1985 finally gave “related rights” (similar to authors’ rights) to people working in the field of creative production. Since then, actors have had a dual status as performers under the Intellectual Property Code and as entertainers under the Labor Code. The legal specificity is that entertainers are salaried, in respect of the artistic freedom of expression. Performers can be co-authors if they act. As such, they can benefit from royalties in addition to their salaries, such as, for example, the trumpet solo player in “Mademoiselle chante le blues ” by Patricia Kaas.