Last month, Netflix was forced to remove an episode of the popular animated children’s series Maya the Bee after a viewing mom posted a screen grab on Facebook that allegedly depicted a crude phallic drawing on the inside of a log during a scene in the show.
Consumer opinions seem mixed about how offensive and deliberate the image was, but Netflix promptly removed the episode from circulation. The show’s Producer, Studio 100 issued a statement in which they blamed the image on a “very bad joke” from one of the artists working on the show, and indicated that they planned to take legal action.
I’ll let you decide how bad you think the offending image really is (see below).
This incident has clearly had long reaching PR effects for Netflix and the show’s producers, and I’m sure the costs to correct and deal with the issue have been substantial.
As a parent with young children, I am well aware of the unease parents have when exposing their children to media outlets today. It is time-consuming and sometimes difficult to decipher parental controls and ratings for various systems and devices.
In this regard, the trust parents place with broadcasters and media distributors is sacred and fragile.
When an alleged offense appears in a clearly identified children’s program on a major distributor like Netflix, that trust could easily be broken. For some, I’m sure an incident like this is enough for parents to turn off Netflix altogether when the kids are alone, at least for a while.
As damaging as this may end up being for Netflix and the show producers, at the end of the day it is only a PR issue.
If the same image had been distributed on broadcast television or cable, the stakes would be much higher. On broadcast television, the FCC has jurisdiction to monitor content for indecency. I suspect that if this incident had occurred on network or local television, it would have resulted in a massive fine.
In 2015, the FCC issued its largest fine ever for a single incident, when a local news station inadvertently included an image of a penis for 0:03 seconds during a newscast. Regulators disregarded the fact that the inclusion was likely an accident, only aired once during a time when children weren’t likely to be watching, and displayed for a relatively short duration. The FCC concluded that the material was so inherently offensive and graphic, it warranted the steep fine.
The infamous Janet Jackson wardrobe malfunction during the Superbowl initially drew a larger fine of $550,000, but was eventually overturned because it was too drastic a change in the enforcement of “fleeting obscenity.” Based on the analysis in those two instances, I think that if episode 35 of Maya The Bee Season 1 had aired on network television during the Saturday morning cartoon blocks, we would be talking about a new largest fine ever from the FCC.
If the incident had occurred on cable television, the production company and distributor could have faced lost revenue or even legal action for damages from networks and advertisers. Consumers have been known to go as far as calling for boycotts of products that advertise with offensive programming.
Worse yet, if a rogue artist included a similar “bad joke” in a commercial and it wasn’t caught, distribution could have resulted in fines, lost revenue, boycotts and a PR firestorm.
The fact that Netflix only has to deal with the PR aspects of this situation is a clear illustration of an advantage of their business model in the media distribution marketplace.
Studio 100 indicated that they intend to identify and take legal action against the joking artist in this case. This action would likely be based on a breach of an employment agreement.
Producers would be wise to protect against similar situations by including provisions in their contracts which prohibit any intentional or even mistaken inclusion of material which might be considered indecent, offensive or reflect poorly on the producer.
Producers might also include a provision for a large sum of set or “liquidated” damages, or an indemnity to defend against the potential losses if their staffers breach the offensive material section of the agreement.
I have often heard production staffers complain about the tedious and repetitive process of content review by lawyers, executives, and “S&P” representatives. I’ve found it exhausting myself in some cases. This is a great example of the relatively low cost of having as many trained eyes as possible on a project before it is sent out for mass consumption, to protect against bad jokes or worse.
**
Jed Enlow, a partner at Leavens, Strand & Glover, currently serves as production counsel for the “Pickler & Ben” talk show, and was formerly the production attorney for Steve Harvey and The Oprah Winfrey Show. He helps clients navigate the evolving issue of content creation and ownership, finding practical solutions to their content issues. Leavens, Strand & Glover, LLC in Chicago and Nashville.
