<b>Clause & Effect</b>Enforcement of Contestant Confidentiality Agreements

With the increase in 'Survivor'-type reality TV shows ' and competition between program producers ' has come the need for greater protection of production secrets. Applicants and contestants for such reality programs are often asked to sign confidentiality agreements to prevent trade secrets from being divulged. But how binding is a confidentiality agreement if a contestant accuses a producer of manipulating a reality show's outcome?

A confidentiality agreement ' one that includes life story rights ' for the reality show 'Survivor' states:

I understand any appearance I may make on the Series is strictly for the purpose of participating in the Series as a contestant. Except as specifically provided herein or as otherwise authorized by Producer and/or CBS, I will not myself, and I will not authorize others to, publicize, advertise or promote my appearance on the Series, receive or generate any monetary advantage from my appearance on the Series, or use or disclose to any party any information or trade secrets obtained or learned as a result of my participation in the Series, including without limitation any information concerning or relating to the Series, the contestants, the events contained in the Series or the outcome of the Series, for a period from the date of this agreement until three (3) years after the initial broadcast of the last episode of the Series. Without limiting the foregoing, I acknowledge that the initial broadcast of the episodes in which I may participate will occur, if at all, after the contest is completed and that any information revealed or disclosed prior to broadcast will cause irreparable harm to Producer and CBS. In that connection, I specifically agree that any information regarding the elimination of contestants and the selection of any winner is to be held in strict confidence by me and cannot be disclosed by me to any third parties. ' I agree that disclosure by me in violation of the foregoing shall constitute and be treated as a material breach of this agreement which will cause irreparable harm to Producer and/or CBS and will cause substantial damage in excess of $5,000,000, entitling Producer to seek, among other things, (a) injunctive relief, without posting any bond, to prevent and/or cure any breach of threatened breach of this paragraph by me, (b) return or recovery of the value of any prize received or to be received in connection with the Series, (c) recovery or disgorgement of the monies or other consideration received in connection with such disclosure, if any, and (d) recovery of Producer's attorneys' fees incurred to enforce this paragraph.

'Survivor' contestant Stacey Stillman signed such an agreement. But after she was voted off the show in a segment filmed in Malaysia, she accused the show's executive producer of telling two members of her 'Survivor' tribe to vote against her. Stillman claimed that such alleged manipulation violated federal laws prohibiting game show rigging. Stillman related her accusation to an author writing a 'Survivor' book. She also sued CBS, the show's production company, SEG, and its executive producer in San Francisco Superior Court, then gave copies of the complaint to the press and spoke to the media. SEG in turn sued Stillman in Los Angeles Superior Court, including for breach of written contract, breach of implied covenant of good faith and fair dealing, and for defamation. The trial court granted Stillman's motion to strike the first two causes of action, but denied it as to the third.

Affirming, the Court of Appeal of California, Second Appellate District, Division Three, noted in an unpublished opinion, '[t]he protectible information and trade secrets that the Applicant Agreement sought to protect could not, as a matter of law, include the manipulation of the results of the show.' SEG Inc. v. Stillman, B151712. The court added that if the 'Survivor' executive producer indeed had manipulated the show's voting, it would be against public policy to bar disclosure of that fact. If the executive producer had not engaged in manipulation, then 'it could hardly be said to have been 'obtained or learned as a result of [Stillman's] participation in the Series,” the court stated.

(The court allowed the defamation claim to proceed on the ground that the Stillman's public statements were reasonably susceptible to a defamatory meaning.)

Clearly then, given public policy, confidentiality agreements can't prohibit contestants from disclosing alleged production wrongdoings. But as the Stillman case demonstrates, producers can respond with sustainable causes of action, such as the continuing defamation claim in Stillman.

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance. He is also an entertainment attorney, Associate Professor of Music & Entertainment Industry Studies at the University of Colorado at Denver, and author of the book 'They Fought the Law: Rock Music Goes to Court.' Web site: http://www.theyfoughtthelaw.com/.

With the increase in 'Survivor'-type reality TV shows ' and competition between program producers ' has come the need for greater protection of production secrets. Applicants and contestants for such reality programs are often asked to sign confidentiality agreements to prevent trade secrets from being divulged. But how binding is a confidentiality agreement if a contestant accuses a producer of manipulating a reality show's outcome?

A confidentiality agreement ' one that includes life story rights ' for the reality show 'Survivor' states:

I understand any appearance I may make on the Series is strictly for the purpose of participating in the Series as a contestant. Except as specifically provided herein or as otherwise authorized by Producer and/or CBS, I will not myself, and I will not authorize others to, publicize, advertise or promote my appearance on the Series, receive or generate any monetary advantage from my appearance on the Series, or use or disclose to any party any information or trade secrets obtained or learned as a result of my participation in the Series, including without limitation any information concerning or relating to the Series, the contestants, the events contained in the Series or the outcome of the Series, for a period from the date of this agreement until three (3) years after the initial broadcast of the last episode of the Series. Without limiting the foregoing, I acknowledge that the initial broadcast of the episodes in which I may participate will occur, if at all, after the contest is completed and that any information revealed or disclosed prior to broadcast will cause irreparable harm to Producer and CBS. In that connection, I specifically agree that any information regarding the elimination of contestants and the selection of any winner is to be held in strict confidence by me and cannot be disclosed by me to any third parties. ' I agree that disclosure by me in violation of the foregoing shall constitute and be treated as a material breach of this agreement which will cause irreparable harm to Producer and/or CBS and will cause substantial damage in excess of $5,000,000, entitling Producer to seek, among other things, (a) injunctive relief, without posting any bond, to prevent and/or cure any breach of threatened breach of this paragraph by me, (b) return or recovery of the value of any prize received or to be received in connection with the Series, (c) recovery or disgorgement of the monies or other consideration received in connection with such disclosure, if any, and (d) recovery of Producer's attorneys' fees incurred to enforce this paragraph.

'Survivor' contestant Stacey Stillman signed such an agreement. But after she was voted off the show in a segment filmed in Malaysia, she accused the show's executive producer of telling two members of her 'Survivor' tribe to vote against her. Stillman claimed that such alleged manipulation violated federal laws prohibiting game show rigging. Stillman related her accusation to an author writing a 'Survivor' book. She also sued CBS, the show's production company, SEG, and its executive producer in San Francisco Superior Court, then gave copies of the complaint to the press and spoke to the media. SEG in turn sued Stillman in Los Angeles Superior Court, including for breach of written contract, breach of implied covenant of good faith and fair dealing, and for defamation. The trial court granted Stillman's motion to strike the first two causes of action, but denied it as to the third.

Affirming, the Court of Appeal of California, Second Appellate District, Division Three, noted in an unpublished opinion, '[t]he protectible information and trade secrets that the Applicant Agreement sought to protect could not, as a matter of law, include the manipulation of the results of the show.' SEG Inc. v. Stillman, B151712. The court added that if the 'Survivor' executive producer indeed had manipulated the show's voting, it would be against public policy to bar disclosure of that fact. If the executive producer had not engaged in manipulation, then 'it could hardly be said to have been 'obtained or learned as a result of [Stillman's] participation in the Series,” the court stated.

(The court allowed the defamation claim to proceed on the ground that the Stillman's public statements were reasonably susceptible to a defamatory meaning.)

Clearly then, given public policy, confidentiality agreements can't prohibit contestants from disclosing alleged production wrongdoings. But as the Stillman case demonstrates, producers can respond with sustainable causes of action, such as the continuing defamation claim in Stillman.

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance. He is also an entertainment attorney, Associate Professor of Music & Entertainment Industry Studies at the University of Colorado at Denver, and author of the book 'They Fought the Law: Rock Music Goes to Court.' Web site: http://www.theyfoughtthelaw.com/.