Twenty years ago, a camera crew would lie in wait to capture the unfolding of an elaborate practical joke. When the payoff came – the embarrassment, humiliation and surprise of the joke's target – the recipient would happily agree to exchange his or her chagrin for the broadcast entertainment of the nation at large.

Given a similar practical joke in today's legal climate, however, the producers of such a show would have to consider the possibility that the target would not smile, but instead speed-dial an attorney to file suit for intentional infliction of emotional distress.

Tort claims against entertainment companies are becoming the norm, and the theories plaintiffs use are expanding in type and creativity. The recent proliferation of such claims against entertainment companies contrasts with the more traditional legal concerns of the industry.

For years, the legal problems of entertainment companies were by and large limited in scope: contract claims, some employment cases and intellectual property disputes. A brief examination of recent cases, however, shows that more expansive tort claims lurk in the background of every production – and the public seems increasingly willing to file suit.

The newly styled tort claims against entertainment businesses take two forms. The first arises – as in the "Candid Camera" situation – from contact between a production crew intent on capturing in unscripted situations "regular" people unaware of the filming or who end up displeased at having been filmed.

"Reality-based" shows (which broadcast sensational actual events filmed as they occur) and television talk shows (which rely on emotional, and sometimes physical, conflicts among their guests) are prime targets for this type of tort claim. Audiences seem to be drawn to such shows for the emotional drama and chaos they portray. However, some critics argue that these shows boost their ratings by pushing the emotional envelope and increasing the conflict and violence of their content.

The most recent case of this type, Marich v. QRZ Media Inc., 73 Cal. App. 4th 299 (1999), involved a claim for invasion of privacy against the companies responsible for the television show "LAPD: Life on the Beat." In Marich, a video crew followed and recorded the LAPD's investigation of a man's death from an overdose of illegal drugs. The decedent's parents filed suit alleging that the show broadcast both the telephone conversation in which police officers notified them of the death and their stunned and emotional reaction to the news.

Marich follows closely on the heels of the U.S. Supreme Court's recent decision that the Constitution bars photographers and film crews from accompanying officers into homes without the consent of the residents. SeeWilson v. Layne, 119 S. Ct. 1692 (1999).

Wilson involved a Maryland couple, who appeared on the evening news clothed in their pajamas as the police executed an arrest warrant for their adult son. Wilson also involved a companion case brought by a 71-year-old rancher and his wife, who were filmed by a TV news crew while federal agents executed a search warrant for evidence of the illegal killing of eagles.

There are other well-publicized examples of tort claims arising from the interaction between production crews and regular people. In Food Lion Inc. v. Capital Cities ABC Inc., 984 F. Supp. 23 (1997), a jury awarded $5.5 million in punitive damages against ABC. The complaint alleged that employees of the "Prime Time Live" news program applied for jobs at a grocery store based on false employment histories. When the reporters then captured unsuspecting grocery store employees via hidden camera and broadcast the investigative journalism piece about the store's purported food-handling practices, the store filed a successful suit for fraud, trespass and breach of the duty of loyalty.

And a jury recently awarded a $25 million verdict against talk show host Jenny Jones and her production company arising from the post-taping shooting death of one of her show's guests following his revelation that he had a "secret crush" on another guest of the same sex. Amadure v. Schmitz, 95-494536-N2 (Oakland, Mich. Circuit Court, Aug. 13, 1995); see also People v. Schmitz, 231 Mich.App. 521 (1998) (related criminal case in which second guest was prosecuted and convicted for murder, reversed on appeal). This suit was brought on the theory that Jenny Jones' show owed a duty to its guests to screen out those with violent tendencies, a theory that may not ultimately survive appeal.

Nevertheless, not just the size but the very possibility of such a verdict has given entertainment companies pause over the consequences of setting out to capture real people in uncensored, emotionally charged situations. Shortly after the Jenny Jones verdict, the syndicator of "The Jerry Springer Show" – often criticized for broadcasting violence between it guests – announced that it would once again move to curb guest violence.

In each of the foregoing cases, the tort claim arose from the interaction between an entertainment production and knowing or unwitting participants. But a second type of tort case does not depend on the direct interaction of personnel from a production company with members of the public. Instead, the theory of liability hinges on the concept that movies, television shows and albums are products capable of causing harm to consumers after they are released into the stream of commerce.

As yet, there are few examples of this type of product-liability tort claim against film, television or record companies. Most such claims have involved allegations that a certain movie or album caused a viewer or listener to commit a violent criminal act. These claims have met with little success because courts have been reluctant to label films or songs as "defective" products, a necessary predicate to culpability under a product liability theory. See, e.g., Davidson v. Time Warner Inc., 1997 WL405907 (S.D. Tex. 1997) (family of officer fatally shot in line of duty filed suit against entertainment companies who had produced, manufactured and distributed "2Pacalypse Now" by Tupac Shakur; negligence claim was improper because of lack of duty and pirated copy of record was not "defective").

But at least one case has survived the pleading state, albeit not on a product-liability theory but on an intentional-tort claim that the makers of the movie "Natural Born Killers" intended to inspire criminal conduct with their movie. Byers v. Edmonson, 712 So. 2d 681 (La. App. 1998) (suit brought by victim shot by fan and imitator of character in movie). Anyone can, of course, "allege" anything, and it is unclear whether the courts will ultimately sanction such claims on the merits.

This second type of tort claim also involves questions about the amount of freedom the nation is willing to afford speech and artistic expression. These suits involve thorny questions of causation: Do fictional or reality-based entertainment programs even have the ability to directly influence human behavior and, if so, can a cause-and-effect link be scientifically demonstrated? Will courts receptive to such claims leap to the conclusion that because a movie, for example, merely exists and was seen by the perpetrator, it qualifies as a factor "but for" which an injury would not have occurred?

Nevertheless, mass product-liability tort litigation can take on a life of its own, regardless of the merits of such suits, because once the number of actions filed reaches critical mass, the sheer expense of defending the litigation sometimes compels even large companies to the bargaining table on unfavorable terms.

Moreover, if movies, TV shows and songs are "products," then the specter of another recent litigation trend also looms: second-wave lawsuits by cities, states and large health-care companies seeking to recoup their health-care expenses for the harms allegedly caused by these products. As with recent cases against tobacco and gun manufacturers, the theory would be that society has borne a defined, increased percentage of health care costs attributable to these products.

Most recently, the NAACP announced that it will sue gun manufacturers on the theory that negligence in the distribution of even nondefective guns has lead to a disproportionate amount of violence in minority communities.

Though these theories are untested and undoubtedly will be subject to intense opposition (as well as the scrutiny of legal scholars), they bear watching for what they may reveal about the future of tort litigation against entertainment companies.

In the wake of the Littleton, Colo., tragedy, there has been a tremendous media focus on legislative proposals and the political pressure brought to bear on the entertainment industry about violence in films and television. Because this debate centers on whether it is feasible, constitutional or even possible to legislate the content of film, songs and television, it is unlikely to be resolved easily or soon.

The possibility of expanded tort litigation, however, is more immediate. While the idea of art shaped by litigation may be chilling, the fact remains that entertainment companies should fully appreciate and prepare for the current litigation climate to avoid significant financial risk.