Terms of a mandatory contract for participation in the reality television series American Idol give a thumbs down to injury claims says a new ruling by the California Court of Appeal. Plaintiff Michael Smith sued American Idol Productions, Inc., Fox Broadcasting Company, LLC, Freemantle Media North America, Inc., and others for negligence after being injured while participating in the televised singing competition. The court rejected Mr. Smith’s argument that his signed release of injury claims should not prevent his lawsuit.
The case arose out of an 2014 ear injury allegedly caused by ear impressions made to fit contestants with in-ear monitors. An experienced licensed audiologist and a a licensed hearing aid dispenser, also highly experienced, made silicone molds of Mr. Smith’s ears. Removal of one mold appeared to injure his eardrum. Mr. Smith sued.
What to know before signing a reality TV participant agreement
Reality show participant contracts typically include terms by which contestants in these unscripted television productions waive claims that may arise from their taking part in these often highly physical and emotional experiences. A “harsh reality” of reality TV is that unless contestants agree, they are not allowed to participate. Mr. Smith was asked to agree to a contract entitled “Contestant Agreement, Personal Release and Arbitration Provisions.” More than 20 pages long, it included a comprehensive waiver and release section. Despite being given approximately three to four weeks to review the terms, he reportedly “thumbed through” and “skimmed over pieces” of the document drafted by the television producer’s attorneys (hardly a “lengthy” contract in the entertainment industry). He apparently did not seek legal advice before initialing to consent.
A contract, however, must not be “unconscionable” or it will not be binding even if signed. This defense to contract obligations means that the terms a party is being asked to accept are so one-sided that they are “shocking to the conscience” that they cannot be allowed to stand. There are two aspects: “Procedural unconscionability” considers the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. “Substantive unconscionability” considers the fairness of an agreement’s actual terms—whether they are overly harsh to one party. The typical situation is when one party has much greater bargaining power, applies intense pressure, discourages the other party from seeking help, and basically says “take it or leave it” about the deal. All of these were potential issues in Mr. Smith’s case.
What to know before you go onstage
But Mr. Smith nevertheless lost. The California appellate court explained that the Contestant Agreement was written in plain language. Headings were set out in bold-faced type and underlined, including those about assuming the risk of injury and waiving all claims and suits. The release that barred Mr. Smith’s claims was not buried in a sea of small type. Ample time had been available to read it and consult with an experienced entertainment attorney about its meaning. There was no element of surprise in the contract, and the fact that signing it was required to participate (“take it or leave it”) was not by itself enough for the court to set it aside.
The unfortunate injury in this case should serve as a vivid reminder of how important it is to read contracts carefully and seek legal advice. Singing for a network television audience may be a performer’s goal, but knowing what one is signing should come first.| Next: Does China’s May Day box office herald new opportunities for independent filmmakers?