Calls come in all the time about doing TV shows. The truth is that they don’t really care about you, but that they can fill air time, which means they need you to show up, speak words, appear somewhat credible and kill time until the next TV commercial. What? You thought you were brilliant?
But sometimes, you get an odd call, such as a show about, say, an old case of yours, where you, rather than some other random attorney, are necessary. The first question you ask yourself is why? Why would I want to waste my time to do this? They don’t pay. There’s nothing in it for you. It’s old news and the only people who will ever watch it are the terminally unemployed. There isn’t even a wisp of a prayer they will ever retain you. In fact, they’ll never remember your name, as the dead air will fill up with someone else within the hour.
Then comes the call, begging, imploring, that you give up a few hours and do it. Sigh. Fine, whatever. The chat with the producers to prove you’re not brain dead, then the car comes and takes you to the studio, where you try to maintain interest until they wrap. A waste of time, sure, but it’s done.
Usually, they have you sign a release beforehand that consists of a few lines of legalese agreeing to allow the production company to use your footage, likeness, voice in their show. You see, this isn’t a “news” show, but an entertainment show. This was old news, an old case, and there is nothing newsworthy about it, so they need your permission. It’s a two-second process, “I release…” and you’re out of there.
9. To the maximum extent permitted by law, I shall defend, indemnify and hold free and harmless each of the Released Parties from and against any and all liabilities, claims, actions, damages, expenses, losses, and costs of any kind (including attorneys’ fees and costs) (collectively, “Claims”) caused by or arising out of my participation hereunder, including, without limitation, any one or more of the following (i) any statement made or action taken by me or anyone else during or in connection with my participation hereunder, whether or not authorized by Producer or the Networks; (ii) my failure to follow the reasonable advice or instructions of Producer or anyone else connected with the Series; (iii) my breach of any representation or warranty herein or of any provision of this Agreement or any other agreements related to the Series; and (iv) my receipt, possession or use of any consideration received in connection with the Series, or my failure to pay taxes with respect to any such consideration (if applicable).
Mind you, the show is not news, meaning that it’s for profit. They’re doing it for money, and so should the people who agree to appear in it. But like a schmuck, I did it for free. But they want me to indemnify them? If they get sued, I should pay for their defense. If they lose, I should pay the damages? If I breach the three-page, single-spaced agreement, I would be liable to them? I think not.
10. I agree that without the prior written approval of Producer, I shall not discuss this Agreement, the results and proceeds hereof, the Series itself, or my participation in the Series with any third party; except that I may make factual incidental, non-derogatory mention that I participated in the Series (e.g., “I participated in the program [Name of Program]”) after the initial exhibition of the episode of the Series in which I appear. My confidentiality obligations and publicity restrictions hereunder shall apply to any and all media whatsoever,including, without limitation, any social networking site, micro-blogging service, user-generated or user-uploaded content website, online forum, discussion thread or comment section, personal website or blog, user modified website (“wiki”), or any other website, service, platform, program, application or other form or method of communication, whether now known or hereinafter devised. For example and for the sake of clarity, I may not make disclosures prohibited hereunder via Facebook, Twitter, YouTube, Tumblr, Instagram or any other similar website or service, whether existing now or in the future.
And then there’s confidentiality. I couldn’t write this post without permission. I couldn’t twit about it. No Facebook, Tumblr or Instagram. And certainly no SJ. And if I did, I would be liable. Not only do I get the glory of appearing on their for-profit TV show, but I have to swear to silence upon pain of liability for the pleasure of it.
I told the assistant producer, who did her job very well and doggedly got on my butt about signing the release, that it wasn’t going to happen. She suggested I go through it, redline it, and could negotiate terms with their legal department. I replied that people pay me to do that, because, you know, I’m a lawyer. So no, I had no plans to spend more time working on their for-profit show for which I was uncompensated. But more importantly, I had nothing to negotiate.
The producer, a very nice guy who really belonged on a better show than this, called. He pointed out how important I was to their show, and I told him I was happy to sign a three-sentence release to the effect that they could use my stuff and not pay me for it. But that was all I would sign. “This is not a negotiation,” I explained.
He told me he would talk to the legal guys and get back to me. A few days later, he called. The lawyers insisted that I sign the release as is. In fact, he told me, they were even more insistent because I was a lawyer, and just the sort of guy who would go after them for something. Well, they had a point there, if they edited my words to create the appearance I said something I didn’t, but then I had no reason to suspect that would happen. If I did, I wouldn’t have done it in the first place.
No, he told me, the lawyers insisted that I sign. I bid the producer farewell. They wanted me on their show. I didn’t give a damn. When you have no leverage, there is no negotiation. I won’t be on Vanity Fair Confidential, and I won’t lose a moment of sleep over it. But there was no way I was signing that release. They’ll have to make a profit without me.