Tribes and Tribulations: Character as Property in Survivor
Almost 600 contestants have appeared on the US version of Survivor, with only 82 of those contestants (approximately 13%) identifying as Black. Over the past twenty years, Black Survivor contestants have expressed that their portrayal on the edited version of the show misrepresents their lived experiences on and off the island. In 2020, a group of Black alumni joined together to produce a series of panels and discussions on race in Survivor and have argued that CBS, the show’s broadcasting network, has a responsibility to accurately and appropriately represent the experiences of their contestants of color. This paper explores character as a form of property and aims to showcase how intellectual property rights and the right to publicity function within the context of reality television. Ultimately, I argue that networks, such as CBS, should aim to balance their desire to produce an entertaining show with genuine attempts to accurately tell the stories of Black and Indigenous People of Color (BIPOC). After showcasing how CBS’s ownership of their contestant’s characters has uniquely harmed Black contestants, I will suggest steps CBS can take to improve their portrayals.
I. Character on Survivor Survivor is an American television show created by Mark Burnett in 2000. The premise of the show is that 16-20 players, called “castaways,” are brought to a deserted island. The castaways are put into two teams, called “tribes.” In each episode, the two tribes compete against each other in a series of challenges. The losing tribe goes to “Tribal Council” where they collectively vote one player off of the island. This pattern continues until there are only two or three contestants left in the game; the final players then face a “jury” consisting of the last seven players that have been voted out of the game. The final players give speeches and the jury members cast their vote for the player they want to win the game. The winner receives the title of “Sole Survivor” and $1,000,000. As a reality TV show, Survivor is known for its memorable characters and character moments. When the show originally aired in 2000, one of the earliest marketing points was that the game was bringing sixteen people from different “walks of life”; the significance of bringing together different socioeconomic, racial, and geographic backgrounds made the show a televised social experiment. While the show still claims to bring together a diverse group of players, at home, audience members see characters carefully crafted by the network, rather than raw footage of sixteen strangers. The discrepancy between reality and their portrayal is what has sparked action from Black Survivor alumni. During the casting and editing process, contestants are typically shaped to fit specific archetypes. While Survivor producers aim to get contestants from a range of archetypes each season, many times Black contestants are repeatedly cast into the same roles or emphasized for the same shortcomings. Gervase Peterson (Season 1), Osten Taylor (S7), Tasha Fox (S31), and Keith Sowell (S38) received major storylines about their inability to swim, contributing to the harmful stereotype that “Black people can’t swim.” Alicia Calaway (S2) is primarily remembered for being aggressive and JoAnna Ward (S6) was shown as “overly religious.” Likewise, contestants NaOnka Mixon (21), Nick Brown (S2), and J’Tia Hart were primarily shown as being “lazy” and nonstrategic and were frequently shown taking naps and not participating in camp work. This seems to suggest that “laziness” is one of their core personality traits when in fact outside of the game, Mixon was a physical education teacher, Brown was a Harvard Law Student, and Hart was a nuclear engineer with a Ph.D. (1). Black contestants have argued that these repetitive, one-sided portrayals ignore the fact that the Black Survivor community is not a monolith. The contestants are multifaceted people, but by shoehorning them into the same narratives every season, they are inaccurately portraying the true personas of the contestants. While producers can only work with the footage they are given, Black contestants have argued that the showrunners focus on turning the footage into memorable moments without also highlighting their gameplay and strategy. While a white contestant may be given both a fun edit and strategic moments, Black contestants often are only highlighted when they do something to support their assigned archetype. These one-sided portrayals come at the expense of giving the contestants “proper credit” for the positive contributions they made to the game. Vecepia “Vee” Towery, winner of Survivor: Marquesas and the first African American contestant to win the game, has been known throughout the Survivor community for being a “boring” and “nonstrategic” player, yet during one of the Black Voices of Survivor panels, Vecepia spoke out about her edit:
They flipped it and made me look like I was under the radar like I didn’t do anything to win that game. Even to the point that when we were watch- ing the episodes, people on my season would call me and email me like ‘that didn’t happen like that. Why didn’t they show you doing that?’ and I’m sitting there like I have no idea (2).
With instances like Vecepia’s occurring regularly, Black Survivor contestants have joined together to campaign for better representation. Black alumni shared their stories in a series of podcasts known as the “Black Voices of Survivor”; the series is accompanied by a petition sent to CBS, which called for “anti-racism”; specifically, they called for CBS to “Ensure that cultural elements of the experiences of BIPOC are not exploited and their portrayal does not perpetuate harmful stereotypes” (3). This raises the question: to what extent do Black contestants have ownership over how they are portrayed on the show? The following sections explore the concept of a “reality tv character” and examine how intellectual property (IP) and publicity laws can be used to give individuals and corporations ownership over characters.
II. Character as Property I believe that property functions in this setting as a means of character owner- ship. Denise Martinez defines “character” as “the aggregate of features and traits that form the individual nature of a person” (4). These traits and features are constructed by various elements, including the person’s “physical appearance, their background and personality, the words they use and the actions they take” (5). As I discuss character in this paper, I am referring to the aggregate of a contestant’s personalities, appearances, and actions, that edited together, make “a character.” Personality is a key component used to build a character. Deborah Halbert breaks a reality TV star’s personality into three parts. There is the “human persona,” which is the person in their everyday life, a functional persona, which represents the archetypal character the network aims to project, and a hybrid persona, which contains elements of both (6). What we see on television is the hybrid persona, where the “Reality TV star’s personality is combined with producer-controlled storylines and edits” (7). This, combined with other elements of their wardrobe and back- ground, create a reality TV character. Thus, the tension between the contestants and the network is over the ownership of these characters. By “character ownership,” I mean control over how the character, including the hybrid persona, is displayed in the edited final cut of the television show and any appearances of the character afterward. The law views character ownership in a couple of ways. Both IP and publicity rights have been invoked to claim ownership over a character. Reality TV characters, however, do not tend to receive intellectual property protections. In order for a character to be eligible for copyright, the creator must prove that the character is 1) “sufficiently Distinctive So as to Constitute an Original Expression” and 2) “constitute the story being told” (8). Martinez argues that reality TV characters are not sufficiently distinctive, as their “hairstyle, hair color, clothing (costume), and scenery change from one episode or season of a reality TV show to another”(9). Likewise, with ensemble casts, a singular Survivor contestant would not “constitute the story being told”: in other words, if that contestant was removed from the season, the show would still be able to proceed (10). While stereotypes themselves cannot be trademarked, trademarked characters, such as “Aunt Jemima,” have perpetuated negative stereotypes about the Black community (11). Some reality stars have sought trademark protection over certain aspects of their character as a way of claiming ownership over their “personal brand” (12). In the early days of Survivor, some contestants would use their experience on the show to propel them to higher celebrity statuses with hopes of making money off of their appearances (13). Contestants who received poor edits might have been excluded from those opportunities, however, even those who were offered opportunities were often denied participation by CBS.14 Sean Rector (S4) described his experience with this, stating “many of the opportunities that were offered to me from different networks, and even Viacom, were denied to me by SEG/Survivor and yet my image and catchphrases [are] exploited on merchandise and monetized by various different entities and I couldn’t even mention Survivor let alone try and make a living off of my experience” (15). While there is an interesting argument to be made that contestants are being robbed of the opportunity to profit off of their personal brand, I am primarily concerned about situations where CBS’s ownership of Black and POC characters cause contestants to be disproportionately affected relative to white contestants. While BIPOC contestants may experience less accurate portrayals than their counterparts, all contestants lack the ability to trademark these aspects of their brand. Ultimately, the ability to profit off of their appearance does not seem to be the primary concern raised by the Black Survivor alumni.
III. The Survivor Contract What I see as the primary property issue here is the right to publicity, which “protects against the unauthorized appropriation of a person’s name, likeness, portrait, picture, voice and other indicia of identity or persona” (16). Survivor contestants give up their right to publicity when they sign the participation contract. During the early stages of the casting process, contestants who wish to continue in the casting process must sign a contract that releases their right to their portrayal during the show and after it airs. Deborah Herbert explains, “the contract grants CBS all rights to the name and likeness of the application, forever, even if the application is not recognizable” (17). If they are selected to participate on the show, “anything related to Survivor becomes the property of CBS” (18). Not only does the contract give CBS the rights to control how they are portrayed, but the network maintains full control over their “life story,” and this control extends after the show airs (19). Thus, once a contestant signs the contract, they relinquish any right to their storylines or narratives on the show, and technically cannot do or say anything after the show to contradict anything that was portrayed onscreen with- out facing a potential penalty (20). As a result, any interviews, talk shows, books, or appearances a contestant wants to make for at least three years after the show airs must be cleared by CBS first. With CBS having control over their narratives on the show and actions afterward, Black contestants have struggled to find ways to reshape their characters outside after the show has aired. Two of the four Black Survivor winners have expressed a desire to participate in positive outreach to the Black community after their show, however, they received little to no support from CBS to do so. Earl Cole, the winner of Survivor’s fourteenth season, Survivor: Fiji, was the first Black man to win the show and the first contestant to receive a unanimous vote at the end of the game. During “The Black Voices of Survivor: Roundtable,” Earl explained that after he won the show, CBS gave him a structured list of appearances and interviews to make. Earl noticed that most of the venues he was scheduled to speak at catered to a predominately white audience and asked CBS if he could make additional appearances at venues where he was more likely to reach a Black audience. However, he was met with opposition from the network. He explained:
I thought that CBS would use this as an opportunity to actually try to get more Black viewers...[but] nothing happened. They did nothing for me. They didn’t promote me in any kind of way...like hey you know a Black dude just won for the first time, won unanimously...[But] I never got any of those opportunities, no promotional things, no marketing things (21). Wendell Holland, winner of Survivor: Ghost Island experienced similar frustra- tion when trying to obtain access to clips from the show for speaking engagements. Wendell described his experience to the group, stating:
We [the four Black winners] want to be great ambassadors for Survivor. We want to go to the community...scream from the mountaintops that we were on Survivor...I spoke at so many places and I tried my hardest to acquire things. I would try to get clips from my show, I’d go through the proper channels, I would send messages to the people at CBS and they make me jump through so many hoops, and ultimately they wouldn’t give me anything, that I could show to like 700 kids (22).
The anecdotes from Earl and Wendell showcase how little agency contestants have once they sign the contract and agree to participate on the show. While the argument can be made that players could have read the contract and refused to sign it, often reality TV contestants have limited legal understanding and when faced with a 100+ page document they may feel overwhelmed or unable to digest it all. While perhaps contestants should read the contract with an attorney present, often reality tv contestants are given a limited amount of time to sign and feel pressured to do so before the network replaces them with another candidate (23). In an interview for Entertainment Weekly, Sean Rector expressed regret for how the contract signing process went down, stating:
I rarely have regrets in life, but if there were some regrets after doing the show, it would have been that I wished I would’ve legally understood the SEG/Survivor contract I signed. I wished they would’ve had more transparency and explanation as to why certain people were able to capitalize off of their experience and others were not (24).
With the pressure to sign quickly and no legal counsel provided by CBS, Survivor contestants have signed away their right to publicity for the rest of their lives, making it challenging for contestants to remedy harmful on-screen portrayals.
VI. Race and Character Portrayal – Finding Balance Given the extensive contracts they signed when they auditioned for the show, Black Survivor contestants do not retain any rights to publicity over their Survivor character. CBS has economic incentives to continue to structure their contracts in this manner, however as more stories of Black contestants begin to be made public, the network is facing pressure to better characterize their BIPOC contestants. Thus, if CBS continues to require contestants to sign away their right to publicity, they still may be held accountable when it comes to handling the characterization and life stories of marginalized individuals. Thus, how can networks balance exercising their autonomy over character creation (to craft an entertaining show), without putting marginalized groups in a position where they are forced to connect their likenesses to harmful stereotypes? In this final section, I will explain how and why CBS should take steps to better characterize their contestants of color, and how they can do so, without modifying their contract.
Unique Harms to Black Contestants A negative reality television edit has the potential to harm any contestant, how- ever, I believe that stereotypical portrayals of predominantly Black contestants create unique harms to the Black community. In her study of race on reality TV shows, Katrina Bell-Jordan writes that reality television can “shape the reality of race and racism in the US” (25). For BIPOC contestants, their character portrayals shape not only their personal image, but how our society views African Americans. Bell-Jordan explains that the “editing and framing of footage depicting the experiences of ‘real’ people have the power to shape our understandings of the people, places and sociocultural issues presented on these programs” (26). People who watch Survivor may have limited real-life experience interacting with the Black community. Thus, portrayals of Black contestants can directly shape the way a person views the community. Likewise, at this point, many Black contestants have recognized how important it is to be depicted in a non-harmful light, and thus multiple Black castaways have spoken out about the pressure they felt to positively represent their ethnic group and avoid any editing traps while on the show. Thus, these players enter the show aiming to “dispel the myths about their respective group” (27). Often, they spend additional energy not only trying to play the game but being hyper-aware of their surroundings and their actions, so they can avoid alienating their tribe. This pressure is two-pronged. For example, while a white contestant may feel comfortable taking a nap after helping catch food for dinner, a Black contestant may feel an additional pressure to stay active, as they would not want their nap to become their main storyline. They are likely aware of the “lazy” stereotype that has been pushed on previous Black contestants and will want to make sure their fellow castaways have no evidence of them being lazy (as this would likely lead to them being voted out). They may also feel an additional level of anxiety around the producer’s ability to push the stereotype on them. While all castaways regardless of race are thinking about their in-game relationships and the final edit, Black castaways experience a unique pressure to avoid falling into stereotypical narratives historically pushed by the show. Navigating these one-dimensional negative portrayals may also make it more challenging for players to be invited back to play Survivor again. Many contestants dream about the chance to be invited back; another chance gives them more exposure, another once-in-a-lifetime experience, and another chance to win $1,000,000. Thus, not being invited back is incredibly disappointing to many players. Black alumni expressed frustration when Vecepia, the first Black contestant to win and the only Black woman to win, was one of the only winners not invited to play in the “All-Winners” season of Survivor. Unpopular characters are less likely to be invited back to play Survivor again; contestants with poor edits are often perceived negatively by the fanbase and thus denied another invitation. However, refusing to play into a stereotype may cause a player to be disliked by production, which could still lead to a negative edit (albeit a different one) or being “black- listed” from future invitations. Out of the 103 contestants who have been invited back to the show, only 11 of the invited castaways are Black (28). Knowing that they are invited back at a lower rate, Black and other BIPOC contestants face another level of complexity not faced by their white counterparts. Lastly, unbalanced edits can lead to Black stories being completely ignored. During Season 38 Julia Carter was the only Black castaway in her tribe. During the first few nights of the game, a fellow castaway used a racial slur. Julia reported feeling uncomfortable but remained silent due to a desire not to make her tribe uncomfortable or put a “target” on her back. Eventually, a white castaway stepped in and confronted the other contestant. After this incident occurred, Julia hoped that once aired, it would create a dialogue amongst viewers about language and race. However, CBS chose not to air any part of this incident, and many speculate that this was done to protect the reputation of the castaway who said the slur (29). In fact, Julia is known for being virtually erased from the entire season, receiving very few confessionals or moments at all (30). This story only came to light after Julia wrote an essay about the incident after the show aired. Unfortunately, Julia’s story of unaired racial incidents is not unique. When the edit chooses to ignore these contestant narratives altogether, they invalidate the lived experiences of Black contestants, while making no effort to make the game a more comfortable space for BIPOC players.
Network Incentives to Address these Harms As I mentioned earlier, for many viewers, characters and their storylines are what makes a show like Survivor so interesting. Building drama, creating conflict, and putting contestants in challenging situations are essential parts of the show, and to do that effectively, production companies need to have blanket approval from the contestants. The contract enables CBS to have control over these creative elements of the show. By owning each contestant’s right to publicity, the network has creative freedom to produce a show that is entertaining to the public. Likewise, character creation is a time consuming, creative process. Retaining rights to these characters serves as an economic incentive for the company to create compelling ones that will generate high viewership. Likewise, part of being a reality TV contestant is the willingness to put yourself out there and risk potential failures or humiliations that may occur (31). Contestants should expect that any negative footage obtained is fair game to be used for the show. Likewise, the comprehensive contract allows producers to obtain “genuine” footage from contestants. Some aspects of Survivor, like the “gross” food eating challenges, are centered around the contestants not knowing what they are going to face. If contestants were to be given a contract that revealed everything that would happen to them, it would remove elements of drama and make it much less satisfying to watch their reactions (32). If CBS was required to receive editing approval from each contestant before airing a show, likely we would never see any conflicts (artificial or genuine), mess-ups, or moments of stupidity. While a contestant may not feel like they “signed up to be portrayed as an idiot,” by virtue of the genre, players should expect some level of humiliation. However, I believe that the harms created by CBS’s current portrayals combined with their contract make the game uniquely challenging for BIPOC players beyond the reasonable expectation of humiliation and drama. The game of Survivor is not “fair”—every player will experience varying levels of luck throughout their time on the show. However, the show is edited in a way that portrays, to the audience, a level of “fairness.” We are led to believe that at the start of the show, for all intents and purposes, each contestant has a relatively fair shot of winning. Yet, Black contestants are not only trying to play the game, but they also attempt to dodge negative stereotypes and positively represent their entire group, all while navigating their complex relationship with production. There is a whole new level of challenge for these contestants. One group of people consistently facing additional hurdles and challenges undermines this illusion of “fairness” that the network tries to create. Continuing to ignore these inherent disadvantages faced by players delegitimizes the game of Survivor. As these issues come to light, the show is at risk of losing the element of com- petition that makes the audience want to turn in each week to find out who moves on. Likewise, as the Black Survivors have begun to speak out about their concerns, CBS has faced lots of negative publicity for how they treat BIPOC contestants. As more Black contestants share negative experiences, future applicants of color may be deterred from applying to be on the show. CBS has already received negative publicity surrounding this issue, but a season of all white contestants would possibly put the show over the edge. Thus, the network now has two incentives to tackle this issue 1) the incentive to continue to stage Survivor as a “fair game” and 2) the incentive to respond to the negative publicity. I recognize that CBS has the economic motive to produce an entertaining show; retaining the right to publicity over their characters and IP ownership over their recordings gives them an incentive to create quality content. I do not believe that CBS needs to modify their contract as it currently exists. However, the network also has an incentive to improve the way they tell Black stories. The network should take steps to make these improvements.
Suggestions for CBS Without modifying their contract, the Survivor team should take steps to minimize future harmful portrayals in the first place. The petition sent by the Sole Survivors Organization asked CBS to hire more BIPOC producers, casting directors, and editors to increase the likelihood that diverse stories are being told in a way that is respectful and accurate (33). A more diverse team would be more equipped to think about representing new archetypes and displaying important parts of each BIPOC castaway’s “life stories.” Likewise, CBS should also make it a priority to cast a more diverse group of players. Some of the pressure tied to a contestant’s feeling like they must “represent for their race” is the fact that Black contestants are only 13% of all players. Often, Black players find themselves one of maybe two African American contestants on a season. The limited amount of representation makes the stakes of an accurate portrayal even higher. The Sole Survivor Organization suggested 30% of the cast each season to people of color (34) and CBS has publicly expressed intent to work towards achieving a similar goal (35). Moving forward, the network should work to increase the number of diverse voices at all stages of production. Likewise, CBS should encourage contestants to speak out against inaccurate portrayals as they see fit. As we have seen with the Black Voices of Survivor podcast, contestants have already begun to speak about their experiences without authorization from the network. I believe that dialogues such as the Black Voices of Survivor should not only be permitted but encouraged; if contestants are encouraged to speak up, stories of stereotypical portrayals made public will put more pressure on the network to do a better job in future seasons. In cases where Black winners, like Wendell and Earl, want to speak in the Black community, the network should be more open to giving them access to materials from the show. No modification to their contract has to be made, but the network should be more diligent about approving and supporting the speaking engagements of BIPOC contestants.
V. Conclusion Throughout this paper, I have showcased how Black Survivor contestants have felt inaccurately portrayed by CBS and I have examined their desire to receive ownership over their on-screen characters. The unique harms experienced by Black contestants reveal that an understanding of property driven by economic incentives can cause great harm to specific groups of people. I recognize that CBS’s property claims enable them to create compelling characters and produce their show without fear of interference from disgruntled contestants, however, their absolute character ownership has uniquely harmed BIPOC contestants. Thus, I suggested that CBS increase diversity amongst all aspects of the filming process and to encourage BIPOC contestants to speak up when they feel uncomfortable with their edit. While neither of these options will give these contestants the ability to trademark their catchphrases or control their edit, it is a step towards eliminating the pressures that come with harmful portrayals. Our systems do not seem to recognize when the creations we fostered create harmful, negative externalities. We seem to rely on the market to naturally eliminate creations that do more harm than good. In the case of CBS, public reaction is the only way to gauge if their show is net positive for society, however, controlling the contestant’s right to publicity functions as a way of managing public reaction through limiting public interactions. Thus, this issue is important to a discussion about property because it highlights how the economic benefits of property rights can lead to negative externalities that uniquely harm marginalized communities. In this case, property rights seem to foster innovation, but there is no formal system in place to check if the innovation, Survivor, is continuing to positively impact society (or even, a structured way to measure what constitutes a “net positive im- pact”). In this case, property rights do not have to be a zero-sum game where either the producers or the contestants are satisfied. Hopefully, the external pressure caused by the public will push CBS to engage with their BIPOC contestants. However, I recognize that the network may choose not to make any changes to their production teams or processes. Therefore, this issue has showcased to me that while property laws can foster creativity, they can also create societal harms that uniquely harm groups of people.
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2 Rob Has a Podcast, director. Black Voices of Survivor: Changing the Game of Survivor. YouTube, 1 Sept. 2020, www.youtube.com/watch?v=e7_rju1pneQ. 3 The Soul Survivors Organization, and J’Tia Heart. “A Petition for Anti-Racism Action by Survivor Entertainment Group.” MoveOn, June 2020, sign.moveon.org/petitions/a-petition-for-anti-racism-action-by- survivor-entertainment-group-2. 4 Martinez, Denise. “Character Ownership in Reality TV”. p. 5.
6 Halbert, Debora. “Who Owns Your Personality: Reality Television and Publicity Rights.” Survivor Lessons Essays on Communication and Reality Television, by Matthew J. Smith and Andrew F.. Wood, McFarland & Company, 2003, p. 42. 7 Martinez, Denise. “Character Ownership in Reality TV.” p. 6.
8 Ibid, p. 8. 9 Ibid, 11. 10 Ibid, 13 11 Greene, K.J. “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues.” American University Journal of Gender, Social Policy & the Law, vol. 16, no. 3, 2008, p. 375. 12 Greene, K.J. “Right of Publicity, Identity, and Performance K .J. Greene Article 4.” Santa Clara High Technology Law Journal, vol. 28, no. 4, 1 Oct. 2012, p. 870. 13 Collins, Sue. “Making the Most out of 15 Minutes.” Television &New Media, vol. 9, no. 2, Mar. 2008, p. 88, tvnm.sagepub.com. 14 Halbert, Debora. “Who Owns Your Personality” p.44.
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23 Blair, Jennifer L. “Surviving Reality TV” p. 20.
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