Two Possible Reasons Why Burnett/MGM Aren’t Releasing Raw Trump Footage

Over the past few days, Apprentice producer Mark Burnett and his employer/Apprentice rights holder MGM have found themselves at the center of controversy over their refusal to release raw footage from Celebrity Apprentice and The Apprentice. The uproar over raw footage has grown louder in recent weeks following an Associated Press report on Trump’s habitual sexist and inappropriate (if not illegal) behavior while working on the show, and Friday’s leak of the now-infamous Access Hollywood tape.

This controversy has led many to allege some sort of conspiracy, allegations fueled by a BuzzFeed report from Sunday in which a “source close to Burnett” claimed that the producer is a Trump supporter and is threatening anyone who leaks the footage with a “$5 million fine.”

Yesterday, MGM and Burnett released a statement (see above) in response to the raw footage controversy denying the claim he supports Trump, pointing to his history as a Democratic donor. Vis-a-vis the footage specifically, Burnett/MGM said, “Various contractual and legal requirements restrict [Apprentice right holder] MGM ability to release such material.” The studio and Burnett further denied claims they were threatening litigation to any potential leakers.

What could those issues be? I believe I have identified two of the largest issues blocking the release of footage.

1. Trump Co-Owns the Footage (or Contractually Has Some Sort of Control)

If you believe the statement, the most immediate issue that comes to image/likeness rights for participants. There is unlikely to be any such issues for contestants appearing on a reality show: release agreements are fairly all-encompassing for so-called “non-talent” (i.e., someone who does not host or judge on a show).

However, “talent” like Trump could pose a legal obstacle. According to a Washington Post profile of Trump, his initial deal for The Apprentice included “a 50 percent ownership stake” in the show*. Trump’s entertainment venture—Trump Productions—co-produced The Apprentice and Celebrity Apprentice with Mark Burnett Productions, hence Trump himself serving as an executive producer alongside Burnett.

It’s unclear whether Trump still co-owns The Apprentice, but as co-owner of the program, he would ostensibly co-own the footage, an obvious obstacle to release. It’s totally possible that Burnett Productions struck a deal with Trump to take full ownership of the show after NBC cut off their working relationship with him.

Even if he does not presently co-own the footage, it is likely Trump’s contract has prohibitive language on how at least some footage could be used. One entertainment lawyer told BuzzFeed it’s fairly common for talent of Trump’s stature to have some sort of “approval over any outtakes, behind-the-scenes footage, and possibly over all footage in general.”

2. Raw Footage Could Legally Implicate Burnett/MGM

Reality competition shows are subject to federal law: specifically, 47 USC § 509, which is ostensibly enforced by the FCC. The law, a response the quiz show scandals of the 1950s, prohibits participants, production companies and TV/radio broadcasters of a competition program (anything that offers a prize with a monetary value) from somehow rigging the outcome—or broadcasting anything with a rigged outcome. Potential penalties can include a fine and/or imprisonment.

In the decades after the quiz show scandals, the entertainment industry built a fairly rigid compliance infrastructure surrounding competition programming. As per a 2014 ABA Journal piece on the legal issues of reality TV, the law is seldom invoked, and cases alleging rigging usually settled out of court.

Some have made claims that reality TV shows are not subject to regulation, but there does not appear to be any legal precedent exempting reality competitions from FCC regulations. The compliance infrastructure is part and parcel of reality TV: many shows have on set compliance officers to make sure things are square and compliance-minded language telling people not to rig contests appears in reality contracts and competition rules, according to ABA Journal.

The ABA Journal cited two cases of alleged rigging on reality shows involving A&E’s Storage Wars and CBS’ Survivor (another Burnett production and arguably his claim to fame), both of which settled out of court. The latter was not the only allegation of rigging levied against a Burnett production: in early 2010, Fox shelved a “heavily promoted” game show Our Little Genius days prior to its planned premiere after learning of compliance issues within the project, and the FCC also investigated the program.

With regards to The Apprentice specifically, Omarosa described the show as “an FCC-regulated game show” in a 2006 interview. Many have long speculated that reality competition shows, despite all the steps taken to comply with the law, have partially or completely predetermined outcomes. Given the reality genre’s sullied reputation, I can’t help but wonder if the raw footage from the program shows flagrant violations of the law, and could invite a further probe of Burnett’s whole enterprise. Contracts for Burnett shows mandate confidential arbitration for any possible any issues, so there may be incidents of noncompliance we do not know about.

There is the possibility the footage could pose other legal liabilities for Burnett. “One of my fantasies is a class-action lawsuit against Mark Burnett Productions,” an alleged former contestant of The Apprentice told the New York Post. The alleged contestant said the only reason Burnett’s shows stay on the air is because of the contracts contestants have to sign. It’s very possible that unaired footage could document other abuses, and again invite unwanted attention on Burnett’s reality portfolio.

*I don’t know whether that ownership stake extended to spinoffs of The Apprentice (i.e. Celebrity Apprentice) and the franchise itself, but with his co-production involvement, I would assume so. But I’m doubtful Trump has any stake in the upcoming version of Celebrity Apprentice, which is called The New Celebrity Apprentice and does not feature Trump as a producer or Trump Productions as a production partner.