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To What Length Will Broadcasters Go to Exploit Human Drama?


     By Kathryn Arnold Entertainment Industry Expert Witness & Litigation Support

PhoneCall Kathryn Arnold at (323) 610-2029


Expert Witness: Kathryn Arnold
He's either recognizable, or he's not, was the relevant question on a recent case where I served as an expert on behalf of a deceased man’s family. They were horrified and distraught after seeing their loved one in his coffin, on a highly successful cable network. Yes, the man was shown in his blue suit, in a coffin over 11 times during a 5-minute segment. Even though his faced was partially blurred, it was not blurred enough, and the family recognized him.
His young children and parents were beyond upset. No one had obtained their permission to have his body filmed for a TV show. No one had ever told the family that filming was taking place during the time his body was at the funeral home for embalming and funeral services. No one took the footage off the Internet where the episode was still showing months later. And no one fixed the blurring to be more opaque, even after the family made several distressed phone calls and legal communications with the production company. So the case went to court.

To What Lengths Will Broadcasters Go to Exploit Human Drama?

In the absence of an appearance release, it is common sense, actually a “Production 101” rule, that you blur an individual’s image so it is unrecognizable—to themselves or to friends and family. Blurring the image serves two purposes: 1) It protects the privacy of the individual and 2) It protects the production and distribution companies from a potential lawsuit. Seems reasonable doesn’t it?

In the early days of reality TV and news broadcasts, blurring techniques were quite crude but effective. The black square block or oval over the face, the opaque blur, or the high shadow/silhouette effect were all was successful methods to obscure an image, so the person couldn’t be recognized.

In today’s world of sensationalized television, the current, less opaque techniques may exploit the drama—by allowing the audience to have a visceral connection to the person they can “almost” recognize—but that recognition may cause undue harm to the individual and their family—especially in a compromising or emotionally disturbing situation. In this situation, the children had to relieve the trauma of their father dying and seeing him stone cold dead in a coffin. Nightmares, teasing at school and great sadness were only some of the side effects of the actions taken by the producer.

Obviously there is a fine balance between creating drama that the audience wants, that visceral/emotional connection to the person on television, and protecting the image, likeness and privacy of the individual. The techniques are simple to do with the current editing programs available today. Even Youtube has a technique in their online editing suite, available to anyone who posts a video on YouTube. So no one can say, that’s the best technique are not available to them.

The production and distribution companies ultimately settled with the family, only days before the trial. Maybe because they understood what they had done was wrong. Or maybe they couldn’t afford the bad press they would have received had the case gone to trial.
Either way, the damage to the family had been done. Settlement money may give them the sense that some form of justice was done, but it won’t take away those years of reliving the death.

As a producer, I would recommend taking the high road. Don’t let the short-term ratings boost you might get by having visceral connection to a person in a stressful situation, overrule your sense of decency and ethics. Either get the “appearance release” form signed by the appropriate individual, or adequately blur the image so as to protect the privacy of the individual(s) and yourself as the producer/broadcaster.

ABOUT THE AUTHOR: Kathryn Arnold
Kathryn Arnold has over 20 years experience in the film production and distribution arenas. Having worked in both the studio and independent film environments, Ms. Arnold understands the inner workings of the entertainment industry, its hiring practices, business development, financing and the economic complexities and the nuances involved.

She has served as an expert and consultant on 3-dozen cases, with plaintiffs and defendants, such as producers, production companies, studios, investors, writers, directors, on-air personalities, crew, and other entertainment personnel.

She has provided expert testimony, reporting, consultation, and financial forecasting on cases regarding economic damage and lost wages from copyright infringement, breach of contract, disfigurement, personal injury, wrongful death, and economic downturn. Clients include Gibson, Dunn & Crutcher; Bowles & Verna LLP; Haynes & Boone; Shook, Hardy & Bacon, Dummit, Buchholz & Trapp; Hosp, Gilbert, Bergsten.

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.
For specific technical or legal advice on the information provided and related topics, please contact the author.

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