How real is reality TV and what are the legal implications? The idea behind a French TV show called Ile de la Tentation, Temptation Island (derived from a US show, and not in fact always on an island), was –
“quatre couples non mariés et non pacsés, sans enfant, testent leurs sentiments réciproques lors d’un séjour d’une durée de douze jours sur une île exotique, séjour pendant lequel ils sont filmés dans leur quotidien, notamment pendant les activités (plongée, équitation, ski nautique, voile, etc...) qu’ils partagent avec des célibataires de sexe opposé. A l’issue de ce séjour, les participants font le point de leurs sentiments envers leur partenaire. Il n’y a ni gagnant, ni prix.”
which translates as –
“Four unmarried couples without children test their feelings for one another during a stay lasting 12 days on an exotic island, a stay during which they are filmed in their daily life, particularly during activities (such as diving, horse riding, water skiing and sailing etc) that they take part in with single people of the opposite sex. At the end of their stay, the participants take stock of their feelings for their partner. There is neither winner nor prize.”
Fifty-three participants from the 2003, 2004, 2005, 2006 and 2007 series brought legal proceedings against the TF1 channel. They argued that they should have been classified as employees and as performers, with all the associated rights in terms of employment and intellectual property law. For example, performers have the right to remuneration, the right to have their permission sought to record their performance, and moral rights such as the right to be identified and not have the performance treated in a derogatory way. The same rights exist in the UK
The case reached the Versailles Court of Appeal, which held that the participants were employees but not performers. Both sides then appealed to the Cour de Cassation, TF1 appealed the finding that the participants were employees and the participants appealed the finding that they were not performers.
TF1 argued that for there to be a contract of employment, the employee had to have been hired to accomplish a task for the benefit of the employer, and that someone who allowed themselves to be filmed while giving their opinions during recreational activities without being asked to do anything in particular, wasn’t doing work. The Court of Appeal had said that what the participants had done for TF1 had had as its end product something of economic value, namely the television programme. TF1 also pointed out that the contract the participants signed said that they participated for personal not professional reasons. The Cour de Cassation said that whether or not a contract of employment exists depends on the facts of the situation, not on the intentions of the parties. The evidence was that in fact there was a “bible” setting out what would happen each day, there were retakes of scenes and interviews where the interviewee was led into saying what was expected of them. Their clothes were also chosen for them. For these reasons, because the activities being filmed were not part of their normal daily lives, and because they were contributing to the creation of a product, the television series, with economic value, the Cour de Cassation held that the Court of Appeal had been correct to consider the participants employees.
A performer for the purposes of the intellectual property law is someone who sings, plays or in some other way executes a literary or artistic work or variety, circus or puppetry act. According to the participants, the Court of Appeal had erred in saying that this definition required a performer to play a role. They argued that playing oneself didn’t exclude one being an actor, and that, as previously mentioned, the participants had been directed what to do, say and wear. They had been making a TV series which was a work of fiction, so should be considered actors with performance rights. Finally, they argued that there was no reason to deny that guided improvisation following a predetermined narrative could be considered acting.
However, the Cour de Cassation again upheld the Court of Appeal’s decision. It held that the participants had not been playing a role or following a script, and were only asked to be themselves.
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