Ben Moskowitz (00:00) You would think, well, if we're gonna allegedly rip someone off, is he the person to do that to? Madelyn Cunningham (00:05) Right? Bradley Carpenter (00:12) Hey guys, happy Friday. Welcome to The Unscripted Files. It's our 10th episode. How fun. My name is Madelyn Cunningham. I am a development producer in the unscripted entertainment industry, bringing you conversations with the minds behind your favorite form of entertainment. Everyone is suing everyone. Defamation, NDAs, IP creative. there's a lot out in the zeitgeist right now and a lot of lawsuits in the reality TV sector specifically. So. I have brought on my entertainment lawyer to give his thoughts on some of the cases that are out there, how they're influencing creatives, producers. And he also talks about some of the ways that you can protect yourself as a creative and producer, as well as red flags to look out for. We use the word allegedly quite a bit and my lack of knowledge about the legal system is on full display. But I hope you enjoy this really fun conversation with my lawyer. Benjamin Moskowitz. Madelyn Cunningham (01:15) Ben, welcome to the podcast. How you doing? Ben Moskowitz (01:18) Good, I'm great. Pleasure to be here. Madelyn Cunningham (01:20) I'm so happy that you're here. Right before I press record, we were going over kind of my like question document and it became so clear what I do and do not know about the legal process. So before we get started, can you just talk, can you like give us just a quick little like 101 on Maybe common misconceptions are things that normal people get wrong, like the different types of lawyers who are just talking about litigation versus other. And just give us a little quick lesson before we dive in. Ben Moskowitz (01:53) Sure, so for anybody out there listening, just as a preface to all of this, while I may be Madelyn's lawyer, I am not every listener's lawyer. And so what you hear within the walls of this podcast should not be construed as legal advice that I, as a lawyer, am giving to you as a listener. With that said, a lot of these concepts and questions and... fact patterns and items that we'll talk about, you see over and over again. So anything that is current or applicable to you, you you can take from that what you will, but It is not legal advice. Yes. You'll also hear me say like allegedly or it depends. And those are probably two of the pieces of jargon in the legal world that Madelyn Cunningham (02:26) spoken like a true lawyer. I love that. Mmm. Ben Moskowitz (02:37) are most frustrating for clients to hear, but also really important for us because the law is so wide and captures so many things within sort of four walls of the contract, which is something that you'll hear some lawyers say, you can have a lot of different interpretation. So allegedly when we talk about litigation issues is really important because there is no definitive until there is a definitive. It depends because so much of this is about how we interpret things, how we use language as a tool to help us make choices and figure out rights and responsibilities. So it's there's a lot of questions that come up. So just as a preface. Madelyn Cunningham (03:16) I also use the word allegedly a lot. know, if I've got some spicy gossip or tea, I just pop allegedly in the beginning and then I cannot be, I can't be liable. You know what I mean? Allegedly. Allegedly. Ben Moskowitz (03:23) Yes. Perfect. Sure, allegedly. Yeah, allegedly. Yeah. We'll also get to hear, like, we'll talk through a little bit of the wonders of the US legal system, which basically means anyone can sue you for any reason. It doesn't have to be a good one. Madelyn Cunningham (03:43) Great, can't wait. so talk to me really quickly about, saying there was two types of lawyers, the difference between litigation and not. Can you talk about that really quick? Ben Moskowitz (03:52) Yes. So I am a transactional lawyer by trade. What that means is I work on your contracts. I work on your paperwork, your agreements, everything that stays outside of a courtroom. So for me, what I do is I work mostly with producers, production companies, writers, directors, people in the creative space who are trying to get things from idea to air. a litigator is someone who really practices law, fighting lawsuits or defending against lawsuits. You know, we were talking about this a little bit. It would be the greatest thing in my entire career if none of my clients ever find themselves in a courtroom because of a lawsuit based on a project we've worked on together. Like that is the ultimate goal of where we don't want to be. unless someone has stolen your work and you want to fight it. In which case, you know, that would be the greatest thing of my career to have that fight and to win that fight. Madelyn Cunningham (04:47) have you been to court or have some of the cases gone to court? Ben Moskowitz (04:52) Some clients have had issues go to court. I will say that they haven't been the salacious ones that you hear about. Oftentimes it's one party fails to pay the other party or one party has not included another party in a project where they're supposed to. So nothing that would make variety. Madelyn Cunningham (05:10) Gotcha, yeah, no deadline headlines. And so when it evolves from the paperwork and transaction, which is your role, to being in court, the individuals you work with would then have to hire someone else to represent them in court? Okay, yeah. Ben Moskowitz (05:26) Yeah, although, you know, I will say I work at a firm, a wonderful firm, Frankfurt, Kernock, Klein, and Sells. We have litigators on our team. So if I have a litigation that pops up, I will always see if one of my litigators can help with it. What you find a lot in the production space though, is you, the insurance that the production company takes out will require you to use certain law firms. And so... It's called, I believe it's the term, impaneling a board of lawyers. So they'll go out and basically shop your case to your insurance company. Same as with any other insurance claim, generally speaking. They'll go out and shop your insurance claim to a bunch of law firms that they work with en masse. And one of those law firms will likely be available in your venue, your location where the lawsuit is happening, and be... take on that case for whatever the insurance fee is going to be. Madelyn Cunningham (06:17) Okay, that's crazy. Okay, and you're saying it's the greatest day of your life if your clients never go to court. Is that because, well, I imagine it's because that court sucks, but also is it because it showcases how well the paperwork was done and how it basically closed every exit. Ben Moskowitz (06:28) Yeah. Ideally, I I think the real moral of the story is litigation is your last resort. You ultimately don't want to get into litigation because litigation is expensive, it takes a long time, things get dredged up about the relationships between people that in our profession and our industry just don't necessarily always benefit. Madelyn Cunningham (06:36) Yeah, yeah, okay. Mmm. Mm. Ben Moskowitz (07:01) person who is either filing a lawsuit or defending against the lawsuit. And so there's a lot of additional steps that stop people from making content when you get into litigation. Basically, can't do anything either. You can't do anything with the work that's already produced because there are some rights issues with it that are now being fought over or, you know. is a buyer going to be less likely to want to take that content on because it's been embroiled in a legal situation. So there are all these elements that go into why is litigation hard? Why does it create a hardship for producers and production companies? Also, You know, just from the way the balance of power works, a lot of times in our industry, you as an independent individual producer may not have the same type of pocketbook to fund a litigation that let's say a network or studio would. And so those are the kinds of litigations, especially that we really don't want to get into. Madelyn Cunningham (07:54) Right, exactly. Right, you were talking about dredging up. So discovery is something we hear about a lot. Does discovery happen only when it gets to litigation? Okay. Ben Moskowitz (08:09) No, and again, let me preface me saying this by I have been practicing as an attorney for 10 years. I have never been involved in a discovery process. So there are attorneys who do that day in and day out and will be much better suited to talk about what discovery is. But generally speaking, there are elements of your life or your work which would be protected. So would not be discoverable. Madelyn Cunningham (08:18) Okay. Ben Moskowitz (08:35) There are other elements. Well, communications between you and your attorney are protected. In many instances, communications between you and a spouse, sometimes relationships between you and business partners. really depends how the chain flows. It's a very interesting system. So if you send a privileged communication to a group of people, sometimes that communication is discoverable because you have, let's say you forwarded that email. Madelyn Cunningham (08:35) Like what? Ben Moskowitz (09:00) someone outside of the chain of protection or then it can open it up. There are so many different avenues of what can and can't be discoverable. The key is if you get into a situation where someone is threatening a litigation or you've already received notice of a litigation, don't start deleting things. That's like, that's just big, big item number one. Just don't start deleting things. Don't go trying to wipe your phone or Madelyn Cunningham (09:02) then it opens it up. Ben Moskowitz (09:25) computer hard drives. And then make sure you have an attorney who is going to be really well suited to help coach you through that process. Madelyn Cunningham (09:31) Wow, yeah, I heard a piece of advice one time. about like pinging at work and emails and texts and it was like if you don't if you got subpoenaed and you don't want anyone to see it don't send it like that was pretty much the advice that I got. do you have to subpoena for certain things once you're inside discovery? Ben Moskowitz (09:48) Yeah. So you can request, what happens is it goes through the process of between the lawyers of the various parties. There are requests made for documents and basically it's trying to build a picture of the background of the lawsuit. So anything you could think of that relates to X event, you can request that documents be delivered. Madelyn Cunningham (09:59) Okay. Ben Moskowitz (10:16) You know, there are a lot of nuances to this, this is a really gross oversimplification of it. But when you get down to it, you'll have hundreds and thousands of pages of discovery. know, big lawsuits. you think of, like, there was a lawsuit that Disney is now in about Moana, the underlying rights to Moana. Someone is claiming that. It's based off of IP that they originated. There's probably 10 million pages of discovery that's being done on this. can be years and years of making. And it is, it's a beast to go through discovery. So like there are big law firms out there where they have teams of people dedicated to just like going through emails and documents and text messages. like, you find what you find. Madelyn Cunningham (11:03) just mining through. Wow. as far as how long discovery lasts, it, but depend on how, I guess, it scale based on how much there is discovered time, know, how much evidence there is? So it scales the amount of time that you're allotted. Okay. Ben Moskowitz (11:18) Yeah. Yeah. It scales. Yes. And it also can depend on a judge can order the discovery only lasts so long, know, certain times if you're going, and it's not just for lawsuits. You you have discovery processes when you go through arbitrations, which are elements of some of the items that we're going to talk through more today on the paperwork side. A lot of arbitration will also have discovery and depending on what for arbitration you follow can also detail how long a discovery process you get. Madelyn Cunningham (11:52) Okay, I clearly have not watched enough courtroom procedurals. I am so, this is so fascinating to me. Okay, so... Ben Moskowitz (11:58) Yeah. I will say this is the first time I've talked in depth about discovery in, I don't know, seven years. Madelyn Cunningham (12:04) It's just, I, again, there's a lot of lawsuits in the zeitgeist right now. Some that are just... darker than others, I'll say. And so the process of discovery is really something we hear a lot about. And if that information becomes available to the public and things like that is like another thing that's been chatted about a lot. So it's just really fascinating to me. Okay. Ben Moskowitz (12:12) short. Madelyn Cunningham (12:25) So you are my lawyer, you look through my agreements, you look through my contracts. I'm considered a creator in the unscripted industry. So coming up with ideas, coming up with formats, and then I will get an agreement from a production company who maybe comes on to render production services or help develop the format. After that, you'll get another agreement from a buyer, hopefully, and that's a network, that's a streamer, that's distributor, and that has more, you know, many many many deal points. And so let's get into, I just want to know the most common legal issues that you see when you're working with creators like me and in the unscripted industry. Ben Moskowitz (13:05) sure. And you know, not that I don't love talking about discovery, but I'm so glad to be talking about stuff that I do every day, every day. So there are a lot of common issues that we see when we get to agreements with individual independent creators like you. The biggest of which is how do we protect you? What you've created, what you've developed, how do we make sure that you stay along for the ride and have a Madelyn Cunningham (13:10) Yeah, okay. Ben Moskowitz (13:30) in that content because your voice as the person who started the process is really important as it goes through and you're right once you get to a production company who wants to come in and be involved to develop once you get to the network if they want to come and do further development or order a series you know you start to lose all of these little pieces of your yeah and it's it's crazy Madelyn Cunningham (13:51) Use you. you move further and further down the list. When I finally got a show with a major network, I It was the weirdest thing. was fighting for a created by credit. was fighting. They were like, you're welcome to come to set. We'll let you on set, but we will not do anything beyond that. And I was shaken Ben Moskowitz (14:02) Yeah. Madelyn Cunningham (14:14) to my core. So why do you think that is? Is it money? It is just the wildest thing and it's not just happening to me. I see it everywhere where the creator just, you know, because it takes so many cooks in the kitchen to make something happen these days. And you add on production company, producers, network, but like it is so wild how an originator and a creator just becomes this like afterthought. It's wild. Ben Moskowitz (14:44) Yeah, and I don't want to ever think of it as an afterthought. But two points to what you're saying. The first is created by credit basically does not exist in the unscripted industry anymore. There was a really small window in time where created by was given by a couple of networks. If you're looking at like a real novel format show or a game show, like sometimes you'll still see created by credits there, but on your Madelyn Cunningham (14:52) Yeah. Ben Moskowitz (15:08) scripted doc projects, any of your like follow reality programming, almost never will you see a created by credit. And it's an interesting thing because the question is what does it cost to give a created by credit? And the answer is really nothing. The problem with it is the one of attachment where by giving someone that platform to say I created this, you know, if let's say the network creates a spin-off or a derivative and you're not attached to it, well then who created that spin-off or derivative? So there's all of these elements to where it goes from the original idea. The other piece about feeling left behind in the process, I don't think it's because there's a lesser value put on the individual creator. I think it's because of the relative power of the creator. Madelyn Cunningham (15:41) Yeah. Ben Moskowitz (15:55) So if you came up with an idea, developed, shot a pitch, then decided you were just going to independently finance that project, went through that whole process, a network could still buy that project, it, and you could be all over it. But because you've now gone to a production company who's going to spend their money to further develop it, who's going to go to a network, who's going to spend the network's money to further develop it. and then the network's money to produce it, it's really just who holds control of the purse strings. And so it's all just a question of what is the relative power to get the show made. Madelyn Cunningham (16:23) Right. Exactly, and I do understand that. This was my first show. I was a very early emerging producer and was just happy. I was happy to be in the room. But once it did get to that point where I was like, well, of course I'll like go on set. It was like, no, no, no. It just wasn't assumed and that really surprised me. But I do understand the... sort of transactional give and take nature of, need you to make this. I need you and I need you what you have to offer. So I will then give up sort of things in order to take your resources so that this can be realized. Ben Moskowitz (16:52) Yeah. Yes, you'll also get a, there are instances I've seen where a creator comes in with such a strong vision of a project that sometimes it actually may end up being detrimental to the end product because if they're on set, if they're involved in all the processes and the vision of what they had doesn't align. with what the network feels like will be a sellable, repeatable product that people are going to want to see, there ends up being friction and disconnect. And so a lot of it, you know, as an individual producer, the game is volume. Like how many great ideas can you produce? Can you sell? Can you get to that next stage? And the actual production is something entirely different. Like what it becomes may be different than what you originally thought. but that may be a product that people are much more interested in. And so there's a weird give and take, and oftentimes you're in the position of being on the give portion of that more than the take portion. Madelyn Cunningham (18:02) Right, exactly. Well, and I understand the position more. I've had people approach me and be like, have an idea for a documentary or whatever, and they may know what they're talking about and they're experts in their world, but they are not experts in this world. And making something marketable for buyers, framing it a certain way, formatting a certain way is what, you know. we have an expertise in. and so I do understand the give and take of like a creator and what they have to offer versus once it gets to the point where we're with the buyer, those visions may not be the same anymore. And having a creator still attached and maybe flexing that power may put undue stress on production. That all makes sense to me now. And I think in some instances, it's necessary to just... Ben Moskowitz (18:34) Sure. to buy that same token. Madelyn Cunningham (18:51) They want more of a handoff situation, I think, than overseeing the project fully, unless you're at a certain level. You know what I mean? Ben Moskowitz (18:58) And that's what I was going to say. You know, there is a point in your career and one's career, especially with, I find it easiest with folks who direct, who create and direct, where the vision that you have for the project may be the only thing that makes the project make sense. And so in certain instances, you know, we have clients, I have clients who do get final cut. Madelyn Cunningham (19:06) Mm. Ben Moskowitz (19:19) because it is so imperative that the creative vision outweighs the business making decisions from the network that it's just something we can't agree to. You can find balances in between the two, but when you're a final cut director, it's hard to give up final cut on a project because it feels so personal. All these things are so personal to the people making them. And so if that's where you need to take a stand, it's the job of someone like me to make sure that we fight as hard as we can for that. Madelyn Cunningham (19:46) Right, exactly. Okay, we got off on the created by tangent, but what are some of the other most common legal issues you see in this industry? Ben Moskowitz (19:56) Yeah, so there's two pieces to it. The first is in the unscripted industry and then in the television, film, streaming industry generally. So with independent producers and production companies, some of the real core issues are... What are the rights that you have to both the subjects that you're working with and also to your production company, your partners? So where are your approvals? Where are your lock? Which is how are you attached to subsequent and derivative productions? What rights are you giving up to the subject? Does the subject have a right to a fee? Does the subject have a right to? decide what archival elements they're giving you. Does the subject have a right to be included in advertising or promo? These are all elements that go into how can you build the biggest and best project without giving up too much to any one side. So that's the biggest thing I Madelyn Cunningham (20:53) Okay, yes. And so if and when a dispute does arise, what are you usually seeing? Ben Moskowitz (20:59) Well, it depends. On the unscripted side of like follow docs and documentaries, you're seeing questions around did the production company have the right to use certain elements? Did the production company portray me in a way that I feel good about? And there's a caveat to that. And then on the other side of it in the more format. Contestant driven content. It's were the rules of the game followed Did everybody play fair and Were there items that I feel like violated my personal rights? And that last one bridges the gap between the two I Add the caveat to the first because as I mentioned earlier One of the things about the US legal system is if you feel aggrieved by a party, you can basically sue them. Whether it's a frivolous lawsuit or whether it's a lawsuit that has merit is a completely different story, but it can go forward. And then you have to go through the whole process of litigation, which is, again, I think not ideal. But because of the way our legal system is set up, it puts the burden on the person who... has done the aggrieving or who has maybe done the bad act allegedly, as opposed to the person filing the suit in a lot of ways. Madelyn Cunningham (22:08) Okay, and I do want to get to the sort of rise in talent bringing forward legal issues in a moment. Ben Moskowitz (22:15) Yeah. Madelyn Cunningham (22:17) But ultimately, representation feels intimidating. It feels expensive. But it is really necessary. At what point should someone seek out, should a creator or independent producer in development seek out representation? Ben Moskowitz (22:29) It really depends. It depends what you're doing, how you're doing it, and what investment you want to make into that. You know, a lot of the people in our industry are fair, reasonable people. There are outliers. And so the question is, how much do you trust the people that you're working with? How much do you trust your partners, what they're doing as to their further development of projects? And where do you find that? you want to make an investment in protecting yourself. And it's personal for everybody. So you may go through years and years of independent development and production, never feel like you need to have a lawyer. And there may be something that comes up that makes you say, I just don't feel right about this. And so that's a great time. Or if you want to take a really proactive approach, you go out early on, find a lawyer. with you doing the things that you need them to do, whether it's setting up access agreements. You know, if you have a form access agreement, if you go out to subjects with that, chances are there won't be a ton of pushback. Or if you do, you you can work through some of it. A form shopping agreement. if that gives you the latitude that you need to go out and feel comfortable, great. And that's not a ton of work from a producer's lawyer standpoint. Once you start getting into production services agreements with production companies or networks, I always say it's better to be safe than it is to be sorry. Because a lot of the things that we're talking about, know, lock, attachment, whether you get travel perks. These are things that you might not necessarily think to ask for as part of your deal points. And then even the more minute legal pieces of, are you gonna be covered on a production company's E &O insurance when they do development? That's a hugely important thing because they will produce something that may not look and feel like what you were doing and it may be a riskier proposition. Or will you be added... Madelyn Cunningham (24:14) Right? Right. Ben Moskowitz (24:24) to press releases, know, little things that you might not think of. Madelyn Cunningham (24:27) And as a young, but it's little, as a emerging producer, those are massive. Like the press is everything, you know, the deadline, the variety. And so, you know, I even, I remember early on was like, I'll give up this, but I want to be in press. And you know, it's so, and so you do, you give and take, you know, things here and there, but. There's lot of, and then there's things that you learn to look for that are important to you. There's things you learn to look for once you get these agreements over and over again. But I like that you said it really comes down to trust and gut and that once you do get into the higher level partnerships and then those EP agreements with buyers, it's really important to, because they're robust, they're long, not feed it into chat GPT and say, is this good? What do I do? What would you do? Ben Moskowitz (25:13) Yeah, mean, ideally not, Madelyn Cunningham (25:15) Yeah. Ben Moskowitz (25:15) ideally not. But by the same token, you know, when you're at that level, you're making enough money that, you know, it's an investment in protecting yourself, as I always say. And whether it's an attorney, whether you have an agent, whether you're with a manager, you know, all of these people are built out around you to form like the team of people who protect you. It's from our childhood, it's a little bit like Captain Planet. Madelyn Cunningham (25:24) Right, exactly, exactly. Totally. Mm-hmm. Ben Moskowitz (25:42) So like individually, each one has its own role, but collectively they are better together and they're better for you together. Madelyn Cunningham (25:48) Right, totally, yeah. What, just off the top, any sort of red flags for creatives to watch out for in contracts? Ben Moskowitz (25:56) Yeah. Yeah. So confidentiality in a confidentiality provision, you want to make sure that you're not prevented from speaking generally about the project and your involvement in it. Once a press release has been aired about it. Also, you want to make sure that the right to use your name, voice, and likeness is limited as much as possible. You the last thing I think you want to have happen as an independent creator is let's say you develop a show. It goes on to be super successful. And then you start seeing lunch boxes with your face on them. Not that it's necessarily going to happen, but you you want to protect against that possibility. Madelyn Cunningham (26:27) Right? Totally. Ben Moskowitz (26:33) Attachments is probably the biggest one. In success, attachments to derivative productions, which is anything created out of your show, is a godsend. It becomes the way that you continue working and how you get attached and build a resume, build a library, all of these things that you want to be involved in. And it just keeps you in the mix on these shows. Madelyn Cunningham (26:56) Yeah, so any spinoffs, anything that's developed for another territory, etc. etc. Yeah. Okay, great. Anything else? Any other red flags? Yeah. Ben Moskowitz (27:05) There are so many, but if you cover your bases of making sure the production company adds you as an additional insured, making sure that you're attached to spin-offs, making sure that you have some control over the creative elements of the show that you really care about, if there are certain ones that you care about, and then making sure that production company can't put your ad on. signage at the supermarket for the new cleaning product because it has nothing to do with the show. Madelyn Cunningham (27:32) Right, right, right. How can creators protect their show concepts? So, we send, you'll send, you come up with something, you maybe send the deck out to a lot of different production companies or even to a buyer, usually when you're sort of more early on, you're partnering. And there's like a couple things that happen. You can get sent, what is it called? What's the, where they send you the solicited materials? What is it? Ben Moskowitz (27:56) No submission language. Yeah. Where it's basically they say, you know, by the way, we don't accept submissions and... Madelyn Cunningham (28:03) It's basically the one where it's like, if we create something like this in the near future, you can't say anything about it. Ben Moskowitz (28:08) And what they say is they say we're creating a million different projects, some of which may have certain elements that are the same, some of which may be different. If you happen to see something in two to ten years forever on our network that looks exactly like your project, just know that we didn't copy your project and we can do this. Madelyn Cunningham (28:12) Right. Yeah, right, basically, or it was already in development or things like that. That happens a lot. But how can creators sort of protect their show concepts, you know, at the entry level and then as they proceed up the sort of flagpole. Ben Moskowitz (28:31) Yeah, yeah, it does. Yeah, yeah. So there's two real ways. And it goes into a concept that is really important, I think, for creators to know, which is what is a copyright? So a copyright is a protection for an original idea, the expression of it, which is the important word. It's for the expression of the idea, but not the idea itself. So what can be copyrighted, protected by copyright? books, scripts, articles, TV shows, plays, music, paintings, source code if you're creating source code, but also treatments, decks, all of these things by putting pen to paper, you have a copyright in that work. Whether or not you've registered it with the US Copyright Office is a different story. If you want to register it, great. It allows you other protections in into that work. But just by having it down, the expression of that idea on paper gives you a copyright in that work. So that's that's the first. The second is an NDA. The second is with your partners, you'll never get it at the studio level. You'll probably never get it at a big production company level. Have your partner sign NDAs. What that means is don't let anybody else talk about your idea without your consent or approval. If they do, then you know, generally speaking, where it's coming from. And so that's the trust. Madelyn Cunningham (29:56) Right, exactly. And there is so much, not necessarily nefarious conversation about projects. You're at a conference, you're with people at drinks or at dinner, and you're like, yeah, we've got this dating show that's based on this mechanism, we're super excited. you know, maybe that idea never gets a buyer or goes anywhere, but this person two years later, it pops up in their mind for whatever reason. Like a lot of times it's not totally nefarious, but those conversations and creativity is so funny because you can have an idea and it can come up out of your psyche and you cannot realize that maybe it came from a conversation or whatever. I do think just being safe of like, Ben Moskowitz (30:21) Yeah. correct. Madelyn Cunningham (30:35) let's not talk about it whatsoever is really smart because in this industry we're all like constantly looking for ideas, constantly coming up with stuff and trying to figure out if it was from a conversation at the bar with another producer or what can be really tricky. Okay, totally. Ben Moskowitz (30:49) Sure. And it happens. It happens all the time. And I guess one of the old sayings is, you know, there's, there's nothing new. Everything is from something else. You know, whether you look back at, you know, whatever allegories you want to make to popular TV or shows or movies or books that go back and back and back, these stories are ones which repeat themselves. It's how we express them. So, you know, the difference between coming out with the voice on NBC where you had four judges turning their chairs. Like that is not an element necessarily that would have been thought of without someone saying, what if they do it blind and they turn around their chairs? And so if another singing show came out before the voice, if it beat them to market with judges turning their chairs and doing a blind. Then you think, well, it's a little too niche for that to have just been thought of. And so then you go through the process of, we want to do anything about it? That's the other question. Do you want to do anything about it? And again, it's a decision made by the producer, by the production company, by the creator to say, like, how much am I going to invest in the thought that I think they stole my idea? Madelyn Cunningham (31:45) Right, right, right. And is it, the most common sort of between like networks, producers, talent? Who's, who's bringing up the issue? Like who is it typically producers and talent? Cause I can't imagine from the top down they're bothering, they're like bothering with it. Yeah. Ben Moskowitz (32:10) Yeah. Yeah. Generally not. And mostly because they like you. I don't think you would have Netflix suing ABC because ABC came out with a show that Netflix might be developing, because I think, as you said, they have a million different things going on. And does an employee leave from development on one go to another talk to someone at a happy hour drinks? Who knows? Madelyn Cunningham (32:35) Exactly. Ben Moskowitz (32:36) But yes, it is the creator suing the network, generally speaking. And that's what you see with a lot of lawsuits in the industry. Madelyn Cunningham (32:40) Okay. Talk. Yes, yeah. Tell me about fair use. What is fair use and how should we be thinking about that? Ben Moskowitz (32:48) short. So a lot of producers, a lot of people who went to film school, a lot of people who have been in production think fair use is anything that's out in the public you can just use because it's in the public. And that is not what it is. So fair use is a bridge between protecting yourself from what you can use without getting a license and protections for copyright. Madelyn Cunningham (33:00) Mm. Ben Moskowitz (33:14) So fair use is a defense against a claim of copyright infringement. It is not proactive. It is a shield, not a sword. That was a law school professor, so I can't take credit for that. Fair use gives you the ability to use the copyrighted material of someone else without getting permission. But there are four criteria that you have to go through. Madelyn Cunningham (33:25) Nice. Ben Moskowitz (33:38) to see whether or not you have a fair use argument. And then ultimately, the argument is then determined by a court. So you would have to get sued for someone for copyright infringement, go to court and say, we had a fair use argument, here's the argument. It's what's the purpose and character of the use. What's the nature of the copyrighted work? Is it, you know, something that's fictional is more likely to have stronger copyright protection than something that's fact-based? What's the amount and substantiality of what you're using? And what's the effect on the market? So how much will it cost someone else? So a lot of people think if I transform this a little bit, then that's enough. Or if I only use 10 seconds, that's enough. But neither of those are actually dispositive of... Madelyn Cunningham (34:10) Okay. Ben Moskowitz (34:20) fair use argument is. Madelyn Cunningham (34:23) Okay, so I'm going to ask you a few questions because I just want to, I do really well with examples. So, fair use or not, I see an article in the New York Times about Ben Moskowitz (34:28) Okay. Madelyn Cunningham (34:35) moms in Brooklyn who are skating and like totally just defying expectations and being rebellious and they're this group and I see that article that's available to the public and I'm like my god I'm gonna write a show about that. Is that fair use? Ben Moskowitz (34:53) It depends. So it depends, but also most likely you don't even need to claim fair use on that because facts and figures are not copyright protectable. So you can, the expression of the idea which we're using for the copyright term is the New York Times article. But if you look and see, well, you know, there's these moms in Brooklyn doing X, Y, Z, the names of these two people. If you go out and you reach out to those people independently, you've used the facts and the figures from the article without stealing any of the expression of it. But if in your deck for the project, you take a ton of poll quotes from the article, then maybe it's a question of fair use. Madelyn Cunningham (35:31) I see. Okay, got it. Interesting. Okay, so because articles, mean, so many development, I mean, we are keeping up with the news articles and, you know, journalism and coverage are huge when it comes to development, whether it's for docu style or otherwise. Okay. Let's see. Okay. Ben Moskowitz (35:55) Well, before you go to the next example, the thought of that is for a while, most networks would require that you get the rights to the article on which a project idea was based. We are now moving away from that and it's actually becoming less. There's less of an appetite to get the underlying article. Madelyn Cunningham (36:05) Sure. Ben Moskowitz (36:13) if you can recreate that reporting or if you can recreate that scenario outside of the article because it's an additional cost that the networks don't necessarily want to pay for. Madelyn Cunningham (36:23) Right, right. Well, I'm in the middle. I have an article option for something. the only reason, well, I optioned it for a few reasons. it felt absolutely imperative for us to have the authors involved and to have the support. So that was one of the reasons we did it. But there's other instances where I've read articles and it's just opened my eyes to an issue and then I dive deeper, you know what I mean? Okay. There's a lot of game shows that use these games that we played as a child. I'll use Traitors as an example, right? It's based on the game like Werewolf or whatever. Let's say I create a show based on the drinking game Never Have I Ever. Ben Moskowitz (37:02) Sure. Madelyn Cunningham (37:04) What is that? Is that a copywritten concept? Okay. Ben Moskowitz (37:07) No, no. Yeah. So if you think about something that is so much tied into the common parlance of like a childhood game or what people say, like most of these ideas, because you're talking about an idea, that's not protected by copyright, generally speaking. There are instances where those ideas have been part of expressions which are copyright protected. Madelyn Cunningham (37:23) Okay. Ben Moskowitz (37:30) But like that idea, no, not. Madelyn Cunningham (37:32) Okay, it's fascinating. I want to talk about a case that is in the world right now. And it's with a show that I absolutely have been devouring, The Pitt on HBO. Parent company, Warner Brothers Discovery. There is a lawsuit. lawsuit, not just to make sure I'm using the right, not a complaint. There's a lawsuit out by the widow of the original creator of ER who, yes, who is alleging that they had been in conversations for quite a while in development for an ER. Ben Moskowitz (37:50) Yep. Not a complaint. Yes, Michael Crain. Madelyn Cunningham (38:09) Is spin-off the word or was it a sequel? Spin-off, a spin-off, right? Had been in conversations with HBO Max, the showrunner, some other producers who were expressly a part of ER for a spin-off. But negotiations went south, network didn't like it, and they shut it down. Then... Ben Moskowitz (38:12) I think spin-off, yeah. Madelyn Cunningham (38:34) in a matter of 72 hours, you and I know how long things take to go through development, so that's why this is so funny. Suddenly, there was an announcement of the same producers, the same leading talent from ER, who is actually inspired by the life of the creator, who was a med student, same people attached, same network, everything, same format of one hour in the ER per episode. that was suddenly like, but it's in Pittsburgh and it's called the pit. This is not, has nothing to do with ER and therefore we will not consult with the estate of this creator, And like it's different and you can't come for us. Wild, So this is a situation in which the creator has passed. They are working with the estate and with his, wife who's still living, his children So talk to me about this case or any thoughts you have here. It's, it sucks. Ben Moskowitz (39:28) Yeah, well, it's very strange. And Michael Crichton, first of all, Michael Crichton, hugely successful author. This is not a nobody. Like Michael Crichton, creator of Jurassic Park, Twister, Westworld. You would think, well, if we're gonna allegedly rip someone off, is he the person to do that to? Madelyn Cunningham (39:37) Yes? No. Exactly. Westworld. Right? After having been in active negotiations on this. Ben Moskowitz (39:55) Yeah. So, so chances are, well, not chances, my thought on this is that there were a series of mistakes made by folks, perhaps on both sides, but I would say more on the Warner Brothers discovery side, because the allegations being what they are and the fact that HBO and Warner Brothers Discovery had so much knowledge of all of this, it would be impossible to think that a lawsuit wouldn't occur based on producing this show without the estate. You know, the HBO defense is that the Pitt is an original work unrelated to the novel, that titles can't be copyright protected, which is true because you can't have a, it's called like a monopoly over common words or phrases. And if they can prove that they developed it independently, then they may win the case. Madelyn Cunningham (40:50) great. Well, and they did something really smart, which they were like, so no one can create a medical drama anymore. That's a dangerous precedent, know, Grey's Anatomy or anything. And no one can do that. that, yes, that is scary for people who are creating within that world. But again, I believe that there is evidence that that format per hour, you know, was, that's what was in conversation to be spin off. And then, Ben Moskowitz (40:57) Exactly. Yeah. Madelyn Cunningham (41:17) Again, we know how long development takes to think that a show of this magnitude, this budget we know the backstory of the shows that they cut and the shows that they green light somehow got packaged together in 72 hours. It's just, you know. Ben Moskowitz (41:33) Yeah, I I would say it'll be very interesting to see how it all plays out. I would not be surprised if this is a case that settles. So I would be surprised if this is a case that does not go through to a final verdict and the parties reach some sort of amicable Madelyn Cunningham (41:42) Yes, yeah. Ben Moskowitz (41:50) agree. Madelyn Cunningham (41:51) Sure. Wow, well, we will stand by. Yeah, I imagine it'll be settled out of court. Okay, so let's... Yes, let's talk about it. Ben Moskowitz (41:55) I think there's actually one other case different from this that is more important for independent creators and producers in the unscripted and documentary space right now though. And you know, no matter what... Madelyn Cunningham (42:01) Mm. Ben Moskowitz (42:11) talking about like politically, one of the biggest stories for entertainment purposes is the case of Donald Trump versus 60 minutes. Because this is for those of people listening who produce unscripted television, who produce documentaries, who produce content where people may feel... like they were not treated fairly in an edit. This is a case that is very, very important. Defamation is something that I think everyone should be willing to talk about. open to because it is in the industry editing matters. Reality contestants sue over misleading edits. There are protections for satire and parody, but that's different than what we're necessarily talking about. And social media makes it so much harder to have a closed universe of people involved in these things because it's so easy to go viral about a moment where something's said. Now just so we know, defamation as a legal standard is split up into two elements, libel and slander. Libel is for written statements, published defamation. Slander is spoken defamation. Generally speaking, the statement has to be false as made. Opinions are not defamatory. So it must be presented as fact. That's why we say allegedly. If you're telling a murder, a documentary about a murder, you should be saying allegedly or, you know, we believe. Madelyn Cunningham (43:34) Interesting. Ben Moskowitz (43:44) any of these couching statements because it is very important if you say someone murdered someone as a statement of fact and that goes on television and it turns out that person didn't murder someone, you got a big defamation issue. The statement also has to cause harm and then it has to be made without privilege. So it can't be in a protected class from like certain court documents. Defamation is also a state by state issue. So every state has different variations on defamation, but most follow the same set of rules. So generally speaking, you have like one to three years to file a lawsuit. There are certain states which take a stronger stance on dismissing lawsuits that they believe to be frivolous. So that's going back to the everyone can sue, but not always are those lawsuits with merit. but it's a really chilling thing for the entertainment industry generally because we oftentimes think that we have the right to speak about people, especially people in public office, people in power with a little bit more immunity than we might otherwise under the law. So that's now a changing thought that everyone in this community, especially if you're on... issue focused documentary side should be really aware of. Madelyn Cunningham (45:05) Fascinating. Okay, so the things I'm thinking, the thoughts I'm thunking right now. we have a rise in lawsuits in the unscripted and reality space when it comes to... you know, how someone is portrayed and then I'm and like reputational damage and things like that. The waivers they sign, do they actually protect networks from lawsuits? Ben Moskowitz (45:27) It depends. And so I won't necessarily talk through, because I think the question is really like, how do we as producers mitigate risk in having people participate in our programming? Because what the networks will say may be very different than what an individual producer would be thinking. So in terms of as an individual producer, yes, you want your subjects contestants to sign the broadest and most protective waivers that you could possibly put in front of them, which would include language that says you can edit, alter, adjust, distort anything that they say or do, which generally speaking would cover you from someone saying you took their words out of context because they have given you by contract the right to do that. Similar, you know, if a producer is, if you're asking someone to say something as part of a scene, because you are, they contractually have to do whatever you tell them to within reason, you know, it's likely to be found that you asking them to say a statement is okay because of the contract that they signed. There's also oftentimes in our waivers a broad rule, what's called a release of all claims, which means that they give up the right to sue you. For a long time that had been held as fine. As, you know, someone has the right to contract to not sue someone. I think we may be going in a direction where that is not necessarily going to be found as enforceable, depending on what the lawsuit is based on. But for now, as a producer, you should always be asking for a subject or contestant to release you from all claims. Madelyn Cunningham (46:58) Okay, I have so many questions. Can a subject, so there's them suing you could be over a number of things, right? Defamation, emotional distress, reputational damage. What are you seeing right now and what's the hardest to prove? Ben Moskowitz (47:19) I don't know that any one thing is harder to prove than another. It just depends on the facts and what's happened. I think one of the more interesting things in the industry is something that came up around a Netflix Love is Blind show, which was that there's a question before the National Labor Relations Board, which is not a court, about whether or not the contestants on Love is Blind should actually have been deemed employees of the show. Because it's a really important distinction because contestants, you can kind of pay or not pay whatever you want. If you're an employee, Madelyn Cunningham (47:53) Right? Yeah. Ben Moskowitz (47:56) forced to do certain things in pursuit of, you know, working on a project, well, then you have to follow all of the employment regulations. have to fair pay, wage and hour laws, overtime rights, like employees have a lot more protections than contestants on a reality show do. So currently we don't know where that stands because the National Labor Relations Board will basically do their own fact finding. They will Madelyn Cunningham (48:07) Over time. Mm-hmm. Right. Ben Moskowitz (48:25) issue a determination from their end as to whether or not they feel like these individuals should be deemed employees as opposed to contestants, participants, and then it goes from there. Madelyn Cunningham (48:36) Do you think, will the decision on that affect then every production from here forward when it comes to sort of those long-term shows where you have a certain amount of subjects? You think it will fall in line? Wow. Ben Moskowitz (48:50) I think so. mean, think that my guess is that the NLRB will not find that these individuals should have been classified as employees. I don't want to say like it's a slam dunk. It's not. It's just really what they what they find through their fact finding as it makes most sense. But I hope that we are able to take whatever happens in that case and use it going forward because it will drastically change the industry if you have to deem all of the individuals who participate in your show as contestants or participants as employees. You know, there's already been clamoring, I would say, in some of the unscripted space, most notably among like Housewives franchises. Madelyn Cunningham (49:23) Yeah. Yes, Bethany Frankel, big proponent of unionizing. Yeah. Right, right. Ben Moskowitz (49:33) Yeah, of unionizing people who are not employees. And so, you know, the question is like, where does that take us then too? Because right now, you know, there's a huge difference between union covered shows and non-union covered shows. Madelyn Cunningham (49:48) yes, a huge financial difference. mean, and frankly, that's what it all comes down to when it comes to getting on the air or not, is these things. and I, it's just so interesting to even think from a gameplay perspective. And I don't know, it's like an equity perspective on set. I think there's an idea, and this isn't necessarily wrong because, there's an idea that producers are like... the worst ever and are mistreating and are trying to do whatever and like were maybe potentially early days of reality tv there was when it was the wild wild west and everyone was like experimenting sure can those producers exist today yes but i think there's an idea that in general we're like evil little minions who are like say this you know and i think it's really interesting to see if we foresee like industry-wide standards for contestants and participants as well as you and how that will change the face of reality TV, competition TV as we know it. It's fascinating. How, when it comes to like, social media, because... Gosh when something goes viral like you know, maybe an edit where you don't look so great or someone's even someone's take on your clip from a show Going viral shifting the narrative of social media. I mean we've seen this with some current cases how does social media play into defamation and Can you I guess you can use examples from social media to like strengthen your narrative of like my public image, the opinion of me has shifted. Ben Moskowitz (51:24) Yeah, yeah, I mean, you certainly can. It's hard to judge what impact social media has on a court case because oftentimes it just goes into like the... of all of the evidence, so all of the facts surrounding an issue. But when you have public sentiment about a person shifting, and let's say someone loses their job because of something that they said that... Madelyn Cunningham (51:48) Right? Ben Moskowitz (51:51) became clickbait or had a viral moment where otherwise people may just not have paid that much attention to it. Then you get into the real harm of what is the, what's the reputational, what's the career, what's the personal wellbeing like of this person after that statement versus before that statement. Madelyn Cunningham (52:10) Well, and social media can also be an avenue in which you're being harassed, you're being bullied because of said portrayal or said whatever. And so now it's dealing with emotional distress and other sort of things that you can sue for. But it is interesting, go ahead. Ben Moskowitz (52:17) Yep. Yeah. I was just gonna say, I tell all my clients, as much as you can, don't frank invite people. Like that's, it's a great way to keep yourself on the right side of producing. Madelyn Cunningham (52:34) Mmm, Frankenbiting. Right, yeah. So just don't, for those of you who don't know Frankenbiting, don't cobble together different things contestants or subjects or people have said to create a statement that... wasn't set at the same time, in the same place, with the same context. Yeah, it's interesting because there's ways around that too, right? Like you may not have to cut things together, but you can show a reaction to something at a totally different time. Or, you know, there was a contestant recently, or not a contestant, a cast member of Southern Charm recently, who basically a scene showing her and this guy together aired... Ben Moskowitz (53:09) Yep. Madelyn Cunningham (53:24) where she found out he has a girlfriend and then they edit and then they air them hooking up. And she was like, listen, I know what I signed up for, but we hooked up and then I found out he had a girlfriend, not the other way around. And so it's really interesting. ooh, like, and then, okay, so her coming out and saying that, is she in trouble now? Is she violating an NDA? interesting. Ben Moskowitz (53:38) Yeah. She could be. Yeah. Madelyn Cunningham (53:47) See, that's what I'm all into of what can they talk about? Because there is more and more a breaking of the fourth wall with reality television in general right now where people are coming forward saying, guys, this is, you know. Ben Moskowitz (53:55) Sure. Yeah, I mean the question being with that, like would NBC or the production company actually go after her for violating the terms of the confidentiality provision when maybe they were the ones who did something a little bit... Madelyn Cunningham (54:08) Right. Yeah. A little shady. A little shady. Yeah, it's crazy. People are sort of, networks specifically, sort of backing off of extreme villain edits now, or are they like, nope, it's free game, sorry. Does it seem like they're fewer and far between now? Ben Moskowitz (54:31) I haven't seen as many networks take a stance against it, but frankly, I may not see a lot of the creative notes that are passed back and forth between production and my clients, unless they become problematic. And so I think it's a matter of, well, hey, who's asking for the villain cuts is the other question. Madelyn Cunningham (54:35) Mm-hmm. Ben Moskowitz (54:50) Because if the network's asking for the villain cuts, you know, it's fair game. If the producer is doing it on their own and saying, you know, we think this should be, you know, the storyline for this project, I wouldn't be surprised if a network maybe takes a softer tone at certain points. It's all a question of mitigating risk. Who's going to have to deal with Madelyn Cunningham (55:17) Yeah, exactly. Are there any other things that you're seeing right now as an independent creator that we can do to protect ourselves? Is there anything else that you're just like, ugh, don't ever do this or make sure you do these things? Ben Moskowitz (55:30) I wouldn't say there's one thing. I think that in the industry, what we're seeing for independent creators and producers, it's two sides of the issue. The industry is in many ways getting bigger because there are more... since the end of 2023, really, I would say, there's more development happening. On the other side of that, the pockets are getting smaller and smaller. So your financial commitments from networks and production companies are on the downswing. So we're seeing networks ask producers to do some of the same things that they did five years ago for less money than they did five years ago or for no money. So the question is, Madelyn Cunningham (56:14) for no money. Right? What is paid development? Never heard of her. Ben Moskowitz (56:20) Well, yeah, that's it. What is paid development? At some of the networks and studios, we still get development fees, but oftentimes those development fees don't cover your expenses. So the question is, how are you going to do development in a cost-sensitive way that also allows you enough... development enough time and effort and energy to develop a project to a point where it's going to be good enough to get to a network. So for an independent creator, the question is really, as I see it, how do we contract? with your partners in a way that gets you either paid or the promise of payment if the project goes forward and doesn't leave you sitting on the outside looking in at everybody who might end up making money on the project. So even though there you think like there are buyers buying more than there were a couple Madelyn Cunningham (57:06) Mm, right. Ben Moskowitz (57:12) the dollars are still not quite there. And so it's how much of an, and really it's what's the investment you're making yourself? You know, what's the risk you're taking? What's the investment gonna look like on your end to get a product to where you think it should go off to either that production company who wants something or the network who isn't giving you any development money. And so it's always just a, it's just a battle. knowing your rights, knowing what you stand for, knowing what... to focus on is hugely important. The way that lawyers and agents and managers can all help you is just to be in your corner, pushing for you to get the best we can do for you. Madelyn Cunningham (57:49) Right. There's a case that fascinates me right now. Let's say that I, a show came out on Netflix and it was someone I went to high school with and... We knew each other, but like nothing crazy. And there is a just redheaded villain, like total bitch who I'm like, my God, that's me. I was class president. I was this, I was this, my God. The whole world did their Reddit thing. They did their Twitter feed thing and they find out it's me and I get rained like holy hell on me. This is happening right now with baby reindeer in Netflix. right? Where someone is telling their lived like lived experience, are artistically and this is narrative, but they are artistically talking about their lived experience and what happened to them based on fact. We've got the text, we've got the emails, but the person who is the antagonist we will say in the narrative Ben Moskowitz (58:26) Sure, yeah. Madelyn Cunningham (58:44) people figured out who she was, even though a different name was used. And she was harassed online, it was all over the news. And they are suing for, is it defamation? Ben Moskowitz (58:57) I believe so. Yeah, definitely. Madelyn Cunningham (59:00) They're suing Netflix basically, right, for this portrayal. It's wild because everyone does have a right to tell their own story. And there is the saying, like, you are the hero in your story, you may be the villain in someone else's, right? That's life. Like, your truth is not necessarily their truth. But talk to me about this lawsuit specifically. Ben Moskowitz (59:20) It's really complicated because Netflix, I think, goes so far as to put either before this show or maybe it was inventing Anna, the Anna Delvey project, they went so far as to put a disclaimer at the start of the show saying that, you know, some of this is fictionalized, you know, it may not be a true accounting. But these people are Madelyn Cunningham (59:29) Mm-hmm. Yes. Ben Moskowitz (59:43) become pretty apparent who they are. Fake names, different looks sometimes, or sometimes very similar look. Madelyn Cunningham (59:45) Right, right. Mm-hmm. Ben Moskowitz (59:51) It'll be interesting to see how the courts come down on this. The Baby Reindeer case, believe, is out of the UK court system. So it's slightly different. There are very different standards for UK court cases than there are for US court cases. But at least the inventing Anna is in, I think it's in California, the lawsuit's in California. And I don't know. It's hard. It's impossible. So it really will depend on what the facts are behind all of this. How much evidence can someone show what, at least for defamation, what has been the actual harm to these people? Is there a quantifiable harm that someone has faced as a result of it? Madelyn Cunningham (1:00:12) It is very difficult. Mm-hmm. It's tricky. It's tricky because again, everyone has a right to tell their story. Okay, let's play a little game. We're gonna do like on a spectrum of getting sued, less risk to the most risk of being sued. Ben Moskowitz (1:00:42) short. Madelyn Cunningham (1:00:52) since most of this is contracted and not necessarily illegal. See, I'm learning you're teaching me. This is all good. Okay, so I'm gonna give you a couple of scenarios and you're gonna tell me the likelihood of being sued. Editing a contestant's words out of context to make them look like a villain. Ben Moskowitz (1:00:56) Here you go. If you have a good release form, it could be totally legal and could be very not risky, frankly. Madelyn Cunningham (1:01:13) Okay, using hidden cameras to film contestants in private spaces. Ben Moskowitz (1:01:18) So this one is more risky. Obviously, if people are going on, you know, Big Brother, the expectation of privacy is very different than if you're going on Chopped. I know you had one of your other podcast guests. So the expectation is very different. If you're a producer and you're producing Chopped, Madelyn Cunningham (1:01:31) Mm-hmm. Ben Moskowitz (1:01:36) I can't think of a reason why there should be hidden cameras in a bathroom. Madelyn Cunningham (1:01:40) Sure. Yeah. unless you want to capture a contestants meltdown. But yeah, but that is interesting thinking about shows we wouldn't necessarily think like Love Island and Big Brother. We know there's cameras. There's like 80 something cameras in Love Island, but it's like what if a contestant on Chopped went out into the hallway? Didn't like had a total blowout moment hit the wall allegedly and it got caught on like a hallway camera. They didn't know that it was there and that made it to screen. That's interesting. So Ben Moskowitz (1:01:45) Yeah. Yeah. But also, it's such a departure from the show that the question is, as a producer, are you doing that to showcase the person's outburst, or does it really go into the creative of the episode? Madelyn Cunningham (1:02:14) Mm-hmm. Okay, so what's the likelihood? Ben Moskowitz (1:02:26) It depends on what you're doing, but I would say Love Island, not that risky, not as risky. Chopped, yeah, you stand a greater risk of someone having an issue with it. Madelyn Cunningham (1:02:27) Okay, yeah. Okay, forcing a contestant to stay on set against their will, where they say like, I'm out of here, get the cameras away from me, I want to go. Like Colton jumping over the fence in The Bachelor a few years ago, like what's that? Right, right. Ben Moskowitz (1:02:46) Yeah, yeah. And look at where that led. I would say it's more risky. I don't think that we've seen a claim of this, but there is a charge of false imprisonment that someone could raise. Again, whether or not you can contract around that is an interesting question. Madelyn Cunningham (1:03:08) I struggle with some of these questions. Okay, a producer telling a contestant what to say. Ben Moskowitz (1:03:13) Yeah, I mean, I think it's good that you struggle with some of these questions because it means you're thinking about it. Ultimately, like that's the goal is we can tell you that, know, a producer telling someone what to say or editing a scene in a way that, you know, a producer wants to see it is totally legal. And, you know, by the contract that you've signed, there's no risk to it. But then you have to deal with the personal ramifications of what that means. Yeah. Madelyn Cunningham (1:03:16) Yeah. Mm-hmm. Write your own moral ethical as a producer. Exactly. Yeah, exactly. Okay, so telling a contestant... Yeah. Ben Moskowitz (1:03:40) So it could be relatively not risky. I mean, I think I was watching something and Kristen Cavalieri, going back to the early days of the Hills, said, no, producers basically said like, say, X, Y, Z, like, we're going to have this person call you and tell them that you're going to this place. And it's fine. Madelyn Cunningham (1:03:56) Mm-hmm, right. Right, right, exactly. altering a competition or challenge outcome after filming to better support the storyline. Ben Moskowitz (1:04:08) Yeah, so that one's, that one I say is much more risky. A lot of times the networks will require that you give all of the rules to the contestants. And, you know, frankly, I think that it's a good thing to do. Let everybody understand what the game is that they're playing so that everybody can play to the best of their ability. If you as a producer think, well, you know, maybe Steve should have won over John for likeability reasons. I don't know that you get to do that if it changes the rules of the game. If there are other things that you can change that don't affect the rules, you know, totally fine to have edits that look different than things may have played out if you have the right language in your agreements. In terms of a risk, you know, if you say that someone won a competition show and really they lost a competition show, who's going to sue you? Maybe the person who actually won, but didn't get the credit, didn't get the notoriety from it. The question is, what's the claim then? Because it's not necessarily a reputational harm. There's not really any impact to them if they still won the prize. So there are questions of what becomes the claim that that person would then bring. Madelyn Cunningham (1:05:12) Okay, the idea of changing rules is interesting or like, cause there's a lot, there's, you know, a lot of format sort of like springing a, uh, a piece of the format on contestants. on a dating show, but you actually have to compete for resources and food and water and fire, whatever. this is an interesting this next one, because I don't know if you're keeping up with Traders and any of the press since Traders, but Traders was filmed, what, last year? It just finished airing, and there's four winners, and Gabby Windy specifically is one of them, and she and all of her press basically was like, I still haven't been paid. I still haven't been paid. Hello NBC. And so not paying contestants for their participation on a reality show. Ben Moskowitz (1:05:56) I will say I have not been up to date on this one, but in terms of paying contestants, again, depending on the language that you use in their contract, you could have someone sign and they may not even know it that they would get paid within 36 months of the last episode appearing. Madelyn Cunningham (1:06:17) Right, right, exactly, wow. Ben Moskowitz (1:06:20) It's a little bit of a crummy thing to do, but it's not, it wouldn't be illegal, there wouldn't be any issue with it. Just how it works. Madelyn Cunningham (1:06:23) Yeah. Yeah, I love I and I don't know what the if you know, I think she's doing it in jest but kind of not really and I love that a little bit that she's just like, Hello. I like, where is it? And I'm interested to see, you know, even as producers, I remember I was sort of, you get to the point where you're like, okay, when am getting paid? And you look at it and it's like, no, no, no. It's not when you start filming. It's not even when you finish filming. It might be in post, it might be after air, which is way down the road. So there's a lot of different parts and pieces in there about payment, but I just love that she was just like, I don't care. I haven't been paid. Ben Moskowitz (1:06:59) Yeah. Madelyn Cunningham (1:07:04) help me I thought that was so funny. Ben Moskowitz (1:07:06) And as a producer, going back to what's important as a producer, your payment schedule, very important. Read it carefully because a lot of times producer payment schedules are tied to delivery and acceptance of the project by the network, not by the production company who you're working for, but by the network where you have no control over what they are accepting or when they are delivered. Madelyn Cunningham (1:07:29) Yeah, whew, don't I know it. Making contestants sign contracts that waive their right to sue, which is what you, yeah. Ben Moskowitz (1:07:36) You should always try for that. Sometimes you will not get that. It creates a scenario where your risk as a producer is increased because you will likely have to indemnify the production company and the network for any lawsuits. And so if a contestant suits, if you have granted them an agreement or if you've entered into agreement where they do not release you, then you will be on the. Madelyn Cunningham (1:07:59) using AI to recreate a subject's voice for a confessional and something they never said. Ben Moskowitz (1:08:05) I personally, I think you should not do this. Depending on the language of the agreement you have, may be able to simulate or artificially replicate someone's voice, name, likeness, in which case you would have the right to do that. Madelyn Cunningham (1:08:09) you Ben Moskowitz (1:08:23) I think it blurs a line and I don't think that most networks would accept it as a deliverable, but you could have the right to do it. depending on what your language says, it could be more risky, it could be less risky. And I'm not, I want to couch this. I'm not against my clients or producers using AI in the process of development or producing. think AI is a wonderful tool that if people get... Madelyn Cunningham (1:08:45) Agreed. Ben Moskowitz (1:08:46) better app. it becomes a real success and it can become a real tool of good in the development process. But when it comes to recreating people who may or may not have given their consent to it, I like to err on the side of caution. Madelyn Cunningham (1:09:00) Yeah. I agree. think AI and development, and I've talked with other producers about this, because so much of development is unpaid. You do it for a very long time. And then even when you get with a buyer, you may have unpaid development. So I think anything you can do to help further visualize and sort of, you know, not have to pay for a stock photo and like all this stuff, like anything you can do is great. When it comes to execution, I'm like, ooh, I don't like, ugh, I'm still not, I'm not there. And I really don't, I like it for, Ben Moskowitz (1:09:22) Yep. Madelyn Cunningham (1:09:31) inspiration, imagery, you know, development, but past that I'm very creator human forward. Okay, last one. Go ahead. Ben Moskowitz (1:09:33) Yep. Yep. Yeah, So the idea that, you know, in a couple of years, could AI replace editors on all of our documentary projects? Possibly. I just don't like the way that it feels. You know, it feels like you want to be sitting in an edit bay creating something that feels human. And I don't... Madelyn Cunningham (1:09:41) Mm-hmm. Mm-hmm. Yeah. Exactly. Ben Moskowitz (1:10:01) I just don't know that AI is going to get to that place. Madelyn Cunningham (1:10:04) Yeah, yeah. Let's hope not. Wow. This has been a masterclass. It can be a tough world to navigate, especially early on and as an independent creator who, if you don't come on with a production company who already has these agreements in place, if you're trying to create attachment agreements, access agreements, shopping, article options and not like, know, cut off an arm and a leg to do it. So it can be so intimidating, having, you know, someone sort of walk you through what to look for and then ultimately use your gut as a really good indicator of when you need to kind of call in backup in the form of legal support. I think it's really great advice. Ben Moskowitz (1:10:26) Yeah. Yeah. And that's, you know, I hope part of what I've done here is demystify like what an entertainment lawyer can be. There are a lot of us who do a lot of things. Some of them are litigators who fight battles in courts. Some of us are people who work on contracts day in and day out and we read and we have a relationships with the network who we talk with and the production companies who we work with and the creators who we help support. So the idea is as you develop as a producer as you're developing your slate, your personal slate, let alone your business slate, make sure you have the people that you trust and you care about and who care about you in return looking out for you because that's... All we provide is a service. So much of it goes to your gut, goes to what you're feeling, goes to the people you trust. your lawyer shouldn't necessarily, and I think I'm very happy to say that I think we have this relationship where your lawyer isn't necessarily just someone you call if there's an issue or if there's a question on a contract that you need read. It's more than that. It becomes someone who can help you navigate elements that you may not be as familiar with, whether in a contract, out of a contract, personnel issues. It really spans the gamut. So I would say, don't fear a lawyer. The same way that you have all of these experiences and learn and grow and when you need one, call one. Madelyn Cunningham (1:12:06) Right, Well, this has been great. Thank you so much for sharing your insights. Hopefully I won't need to call you soon unless it's to review a really good contract. But thank you so much for coming on. Ben Moskowitz (1:12:16) There you go. Thanks for having Bradley Carpenter (1:12:25) thank you so much for listening. There was a lot more that I wanted to talk to him about, but he could not actually comment on some of the bigger lawsuits that are out there. So we're just going to see how those play out. But I hope that this was helpful for you as someone in the industry or it satiated your curiosity as someone who is a fan of reality TV and sees all of these rips from the headlines issues. thanks again for listening. Follow us at Unscripted Files pod on Instagram. Let me know if there's anything you want me to talk about, any guests you want me to bring on, any shows and creatives you want to talk about. Thanks for liking, subscribing, rating, and reviewing. And thanks for staying with us for our 10th episode. Many, many more good things to come. Have a great weekend, everybody. Madelyn Cunningham (1:13:07) The Unscripted Files is brought to you by Good Gravity Entertainment. Thank you to producer Bonnie Adams, Original Music by composer William Wright, Artwork by Lisa Schweikart, and Photography by Reid Schick.