Can You Sign Away Your Nudity Rights?

In a current case between the producers of VH1’s Dating Naked, Viacom and contestant Jessie Nizewitz, 28, $10 million is on the line regarding an incident in which the company failed to blur out the plaintiff’s genitals.

Nudity is a tricky issue in American society, a fact that is complicated by our utter fascination with the subject. In a current case between the producers of VH1’s Dating Naked, Viacom and contestant Jessie Nizewitz, 28, $10 million is on the line regarding an incident in which the company failed to blur out the plaintiff’s genitals. Is there such a thing as nudity rights? However, what this case really comes down to is the priority taken by an oral contract vs. a signed waiver.

Nizewitz’s case

The plaintiff, a former actress, model and stripper, is suing for $10 million for the network and producers’ failure to blur out her vagina and anus in a scene in which she wrestled naked with another contestant. She claims that she has suffered extreme emotional distress, humiliation, embarrassment and mental anguish.

Nizewitz describes hearing from people who had seen the show, including her parents and grandmother, reading about the event on social media and explained that it ruined a budding relationship with a man who never called her after the airing of the show. She laments that the lost companion was employed, Jewish and in his 30s.

Her legal case rests on the claim that the producers of the show repeatedly promised to blur out body parts that constitute nudity, which constitutes an oral contract. Given developments in the case, however, it is possible that proceedings will move to argue the unconscionability of the waivers signed.

The defendants’ case

Viacom and the show’s producers, Lighthearted Entertainment and Firelight Entertainment, have both filed memorandums supporting the dismissal of the lawsuit. While they may have a strong case, it should be pointed out that one of the arguments they make holds little to no water.

The defendants note Nizewitz’s former profession as a stripper and her expression of comfort with the show’s premise during the application process. While it does appear that Nizewitz repeatedly stated her comfort with nudity, and indeed, makes mention of this comfort during the episode in question, this should hold no bearing on the rights of the producers to broadcast unblurred images of her body, given that they agreed to blur them.

An argument that may hold more sway with the court, however, is that the waivers signed by Nizewitz appear to give them the right to do exactly that. In fact, this case serves to demonstrate the length to which the producers of this show have gone to excuse themselves from liability.

According to the producers’ arguments, the waiver signed by Nizewitz gave them the right to film her in the nude, telecast that footage without restriction and collect $2 million in liquidated damages should she breach the contract. Further, she waived her right to any claims arising from her appearance on the show and agreed to pay the defendants’ attorney fees and costs should she bring a lawsuit. She also, apparently, specifically disclaimed reliance on any extraneous oral representations in this 33-page contract.

How this case proceeds will be interesting to watch, particularly in light of the public’s recent interest in people’s personal rights to nude images of themselves. Viacom, correctly, refers to cases related to the film Borat, in which the consequences of a waiver were upheld despite the defendants’ oral misrepresentation of the situation. It is worth noting, however, that those cases rested in part on the defendants’ characterization of the film as a ‘documentary,’ which was ultimately upheld. One could not say that the defendants in this case followed through on their alleged oral promises to blur Nizewitz’s genitals.

As a New York entertainment attorney I have found that anything that involves the legal aspects sex and nudity on television can be a bit trick . Check out some of my previous posts about this subject below:

• Refusal to Perform Topless Sex Scene Leads to Lawsuit
• Chelsea Manning, Edward Snowden & Celebrity Nudes
• Workplace Harassment Could Be An Issue in “Femme Fatales” Lawsuit