research@hec - Issue #34 - (Page 2)

law research hec Reality TV: What is the legal status of participants? Neither game nor documentary, reality TV dramatizes real life, so are the people it puts in the spotlight players or actors? They are performers who are entitled to the respect of that role regardless of the merit of that performance, argues Marie Serna. Marie Serna B iography 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 particular interest in art and entertainment law. She holds a PhD in law from Paris II University. 2 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 emptyhanded 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. • August-September 2013 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.

Table of Contents for the Digital Edition of research@hec - Issue #34

Cover & Contents
Reality TV: What is the legal status of participants?
Audit fees: What is the influence of shareholders?
Renewable energies in Europe: A priori beliefs and institutional pressure hinder investments

research@hec - Issue #34