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Startups and Likeness Releases: A Cautionary Tale

Startups and Likeness Releases: A Cautionary Tale

“We made a mistake.” This was how podcast veteran Alex Blumberg summed up a recent incident in which a company mishap accidentally turned an unwilling 9-year old boy into a product pitchman. 

The Incident

Alex Blumberg has a long track record working with podcasts, having served as an executive producer for This American Life and as a co-founder and host for Planet Money. He recently founded a new podcast network called Gimlet Media and has been documenting his foray into the entrepreneur space via the Startup Podcast.

One of Gimlet Media’s shows, Reply All, was getting ready to air its premier episode and signed on website maker Squarespace as the inaugural sponsor. Gimlet was put in charge of producing the show’s ad and decided to find and showcase interesting Squarespace users in it. One of these people was a 9-year old boy named Riley who runs a site dedicated to the video game Minecraft.

Blumberg’s team emailed Riley’s mother, Linda, asking for permission to interview her son. Unfortunately, the email never mentioned that the interview was to be used as an advertisement for Squarespace. Furthermore, the email never even mentioned Gimlet Media and came across as sounding like Blumberg wanted to interview Riley for a segment on NPR’s This American Life.

twiter-linda-sundry-startup podcast

Image via Linda Sundry

Linda was not happy when she discovered that her son was being used as a spokesman and sparked a social media firestorm against Blumberg, NPR and This American Life. Upon learning about the misunderstanding, Blumberg immediately pulled the ad and personally reached out to Linda explain that that they never intended to mislead her and that the incident was due to the fact that this was the first ad that his company produced. All parties seem to have made peace.

What Went Wrong?

This incident resulted from miscommunication, not malice. The email that Blumberg’s team sent to Linda was ambiguous and assumed that Linda knew about Gimlet Media and that she would be able to connect the dots that they were producing an ad. 

In one of her tweets, Linda said, “No one gave me a release to sign or anything like that, or talked about compensation.” A release is a simple legal document that grants permission to use a person’s likeness, words, property, etc. in some way. Although you don’t need a release when covering people in a journalistic capacity, you almost always need one if you’re going to use someone for commercial purposes, such as advertising a product.

Although you don’t need a release when covering people in a journalistic capacity, you almost always need one if you’re going to use someone for commercial purposes, such as advertising a product. 

For this specific incident, a document like the Name and Likeness Release in Shake’s Film and Video Production Bundle would have helped to align expectations. It would have made it clear that the interview was for Gimlet Media and not This American Life. A release would also have clarified that the material was to be used for commercial purposes and not for an interview. 

Blumberg Isn’t Alone

Unfortunately, this sort of thing happens all the time in the startup world. A lot of young companies will have friends and acquaintances pose for website photos or appear in product videos with no documentation. They never bother having their friends sign a model release since they know the people personally and just assume that they can use their image to promote the product. Problems can arise down the road when the person discovers their image is being used in a way they weren’t expecting, or when the friend who worked at the company has moved on, or when the small company suddenly turns into the next Google.

What Should Startups Do To Protect Themselves?

Anytime you’re using a third party asset, whether it’s a photo of a person, or a friend’s design, or a customer testimonial, make sure that the other person understands the intended purpose and get them to sign a document saying so. It’s always better to safe than sorry, and taking a the time to set expectations upfront can help you and your company avoid embarrassing media situation and potentially costly lawsuits down the road.