August 22, 2007
The "Kid Nation" Contract
Posted by Gordon Smith

The NYT describes the contract signed by parents of the children who participated in "Kid Nation" (first discussed on this blog here), the controversial new reality show on CBS:

The 22-page agreement leaves little room for parents to argue that they did not know what their children might encounter. As is standard in such agreements, the parents and the children agreed not to hold the producers and CBS responsible if their children died or were injured, if they received inadequate medical care, or if their housing was unsafe and caused injury.

But while such agreements might be standard for adult participants in a reality show, it also takes on a different tone when the minor and the parent are being held solely responsible for any "emotional distress, illness, sexually transmitted diseases, H.I.V. and pregnancy" that might occur if the child "chooses to enter into an intimate relationship of any nature with another participant or any other person."

The agreement also imposes extensive confidentiality requirements on the parents and the children, including that any interviews they grant must be approved by CBS. Those confidentiality conditions extend for three years beyond the end of the show, not the individual 13-episode cycle in which a child participates but the entire series, however many cycles it includes. The producers of "Kid Nation" have already begun interviewing children to take part in the second installment.

Violating the confidentiality agreement carries a $5 million penalty. CBS and the production companies, Good TV Inc. and Magic Molehill Productions, retained the rights to the children's life stories "in perpetuity and throughout the universe." And that right includes the right to portray the children either accurately or with fictionalization "to achieve a humorous or satirical effect."

To ensure that parents and the children abide by the agreement, the payment of the $5,000 stipend promised to the children who complete the series and the $20,000 that some of them received for being voted the best participant in each of the 13 episodes can be withheld, according to the contract, until after the broadcast of the entire series.

The contract also specifies that the children are able to leave the production at any time, but that in doing so they will lose their right to receive payment and will still be bound by confidentiality provisions.

A couple of points. First, it would be nice to see the actual contract, not just a reporter's summary of the contract. I know, I could just request it from the New Mexico Attorney General, wait several days, and shell out a few dollars for the contract. But the NYT has already done that, so why not provide the document?

Second, in some respects, this contract sounds like the releases that I sign when my children want to play sports at school. Such releases generally cover negligence, not recklessness or willful misconduct. Interestingly, some courts have invalidated even releases of negligence on "public policy" grounds. A key case here is Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963), which discerned in prior cases a "rough outline of that type of transaction in which exculpatory provisions will be held invalid":

It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

By that standard, CBS would have trouble with a lawsuit by parents. In this instance, however, the New Mexico Attorney General is investigating whether "the show's producers might have violated state labor laws and licensing requirements for child housing." An exculpatory provision has no value against those charges.

UPDATE: The actual contract can be found here. Thanks to Elizabeth Winston for the tip. I looked through it briefly and didn't see anything that would change what I wrote above.

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