10:33am PT by Eriq Gardner
'Dating Naked' Producers Tell Judge They Have Right to Show "Unfettered Nudity" (Exclusive)
When Jessie Nizewitz filed a $10 million lawsuit in late August against Viacom and producers of VH1's Dating Naked for allegedly violating her privacy by failing to "blur out her vagina and anus," one might have assumed that the producers would rush to move the dispute into private arbitration. But the defendants have gone the extra step by waving before a judge three releases signed by Nizewitz that allegedly give the producers the right to show Nizewitz' birthday suit.
Nizewitz says in her lawsuit that since the initial airing of the third episode of Dating Naked, she "has suffered and continues to suffer severe extreme emotional distress, mental anguish, humiliation and embarrassment."
The producers retort that when Nizewitz —"a former actress, model, and stripper" — applied to be on the show, she explained her comfort with the show's premise, saying the “nude thing isn’t a big deal to me, I’m very comfortable being naked and with my body in general.” And Viacom points out that in the episode in question, she mocked another participant's shyness, saying "Honestly, being naked to me really means absolutely nothing."
That was a good and necessary thing, the producers think.
"Since unfettered nudity was a crucial aspect of the program, the Production Defendants were careful to document the participants’ consent," states the memorandum.
The agreements that Nizewitz, 28, signed as a condition to participate on the program are described by the producers as "unequivocal" in that Dating Naked was conferred the right to film her in the nude, that the footage would be telecast without restriction, and that she waived any claims arising out of her appearance on the show. What's more, Nizewitz agreed to pay defendants' attorney fees and costs if she ever brought a lawsuit. See the participant agreement below — a whopping 33-page contract that details the type of onerous conditions that reality TV wannabes must consent to before appearing, including $2 million in liquidated damages for breaching the contract.
In most cases involving reality show contestants, plaintiff's lawyers might seek to argue the unconscionability of the waivers, but here, Nizewitz's attorney bypassed mention of those releases to instead rely upon a claim that the producers breached an oral contract by allegedly promising repeatedly to blur.
"However, when she signed the agreements consenting to her appearance, Ms. Nizewitz specifically disclaimed reliance on any extraneous oral representations," responds the producers' memorandum.
In Viacom's papers, the company nods towards a space of cases (like this and that) over Borat that have upheld the consequences of a waiver. Viacom also attempts to get ahead of any argument that the releases are unenforceable because failure to blur amounts to gross negligence or intentional misconduct. Viacom says Nizewitz "alleges no facts to support the existence of a duty to obscure her genitals other than the obligation supposedly created by the alleged oral contract" and further argues there's not even a hint that in whatever happened, it came as an intentional move.