NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha, and you are listening to the best episode ever.
MATT: And I’m Matt Staub, and I hope that’s correct or it turns out to be correct.
NASIR: Actually, I’m nervous about this episode because it’s about reality TV and it’s your favorite genre so I just don’t want to mess it up.
MATT: My favorite genre? Uh, I don’t know about genre. I mean, if sports is a TV genre, that’d definitely be favorite.
NASIR: Oh, yeah, sports.
MATT: I mean, after that, I like comedy more than… I think that’s very well-documented on it podcast.
NASIR: Do you know what the best show on television is right now? By the way, if my family’s listening, they already know the answer to this question because I say it all the time – best show on television, do you have a guess?
MATT: According to you?
NASIR: No, just period.
MATT: I can guess but it’s not going to be right.
NASIR: It’s a reality show and it’s a comedy show and the name of the show is Impractical Jokers.
MATT: Yeah, you’ve told me this before.
NASIR: I have told you this before – best show on television, hands down. Anyone who says otherwise, I will correct them. You can just let me know and I’ll correct you.
MATT: You know, you did tell me that before and I watched it and it was actually, I’d never seen it before, I just thought it was going to be really stupid and it was better than I thought. I wouldn’t go “best show” but…
NASIR: I don’t know. It’s the only show that I can just be like, put it on and just enjoy, you know. But we’re not here to talk about that – I want to but we’re not.
MATT: We’re not?
MATT: That’s all I prepared for. I had all these pranks ready. So, this show, I didn’t even look at… is it NY Med? Yeah, NY Med is a reality show and I’ve never seen it. I knew there was a Boston one that was similar that was on so it’s basically like a real-life ER or Grey’s Anatomy – except probably a lot less or probably a lot more realistic – but it’s this reality show called NY Med and it’s shooting footage of an emergency room essentially – or it was in this instance – and it actually caught some footage of someone in the ER, a patient, passing away and I guess that showed up on the show. Of course, they wouldn’t have obviously gotten the person who passed away’s permission but they didn’t get permission from the family or anyone. They just kind of put it in there and kind of went on with their business and I don’t think the family even knew they were shooting it until the video showed up on TV, I believe.
NASIR: No. Apparently, they just found out which is weird in itself, of course.
MATT: Yeah, I wonder why they were watching. So, they did some procedural of what’s happened so far. They sued ABC and the hospital and actually the judge has already dismissed that so they’re in appellate court in New York right now, state court.
NASIR: The faces I think were unrecognizable so people don’t actually know who they are. You know, if you’re in the medical industry, the first thing you’re thinking about is HIPAA which is a statute that basically protects the private information of patients. But one thing that everyone knows about HIPAA is that, if you de-identify the information – because HIPAA information or medical charts and so forth – that data becomes very valuable but, in order to share it, sometimes, what they do is they just de-identify the patient information by taking away the name and any kind of other identifiable information and then you can typically transfer it freely. There’s conditions to that but the point is that, in the reality show context, you put a little blurred face in there and then you should be good, and I think that’s where the court kind of came down to and where they’re appealing on this is on other subtle issues.
MATT: The instances where you need a release waiver, I mean, it’s typically when you’re using someone else’s name, voice, signature, photograph or likeness. But, like you said, it has to be readily identifiable so, if the face is blurred out, I would say that you can’t really identify who that individual is. I mean, I would go as far as to say, you know, if you saw the back of them, you probably couldn’t identify who it was either unless it was, for some reason, very obvious. I mean, I’m guessing that’s why it’s got kicked out at this point. Maybe something will change when it goes through appeals but, at least for now, it’s been denied. Now, I don’t know what the timeline is on this. I’d be interested to know how quickly it went from the show airing. Well, obviously, it’s a TV show that’s shot so the person obviously died. The patient died then the show aired – possibly weeks, possibly even months, I guess – down the road.
NASIR: Yeah, it looks like they premiered on July 10th 2012 so a couple of years ago or a few years ago.
MATT: Oh. Well, I’m just thinking timeline for how close in proximity all these things happened and then at what point they brought the lawsuit as well. I mean, it’s something that I think people sometimes think about – or I guess, more accurately, don’t think about – is when can somebody use your… typically, it’s going to be your voice or a video recording of you legally without having you sign some sort of release saying that you consent to that use? Let’s say you and I went to that Chargers game last year and maybe we were on TV – I don’t remember or actually I don’t know – not that I don’t remember. If we were on TV, you know, we didn’t have to sign a release for that. There’s exceptions for things like that or the news but, you know, if someone’s shooting a video for a TV show, it’s a little bit different because this isn’t the news. It’s reality TV.
NASIR: Yeah, and I understand the producers’ perspective in the sense that, unless you get a release, you’re not going to be able to show their face. And so, usually, that’s the first thing that they do – have them sign a release waiver before they even film. You know, when you’re filming a reality show, that stuff happens. What happens when a guest just pops in or you’re in public and so forth? Those are issues that you have to consider. But, in this case, they’re like, “Okay. Well, we’re going to blur them anyway so let’s not get a release.” But then, of course, there’s implications to that because they argue that these are private moments, you know. Whether or not they’re anonymous or so-called anonymous, things like that of the sensitivity of someone that got injured and possibly is going to die in front of the camera that’s going to be later broadcast, there’s of course an elevated sense of concern. You know, there’s other causes of action that were related to privacy. Like, there was something called the intentional infliction of emotional distress which, again, didn’t seem to fly with the court in having the motion dismiss granted. But, you know, this whole thing, this is all kind of academic because, a lot of times, how many of us are actually in this situation? But you also see businesses that subject themselves to reality TV shows. We’ve seen it many times. We’ve covered in the past that one Amy’s Bakery that’s now infamous in its exposure on Kitchen Nightmares and then we also have that show Shark Tank which, you know, once you’re on there and you’ve given the release, even if you look like a fool, you can’t really take it back. It’s what’s done is done and you’ve kind of waived your rights in that respect.
MATT: That’s much more of a likely candidate for a best TV show than your selection. I think Shark Tank is better.
NASIR: It’s not comical. Well, it’s always sometimes comical – like, on occasion.
MATT: Yeah, and what’s interesting, now that the sharks notice that some of the people were going and not all the people would go there to do their pitch and everything, now all of that makes it on TV. ABC can still pull back and not do it. I guess, if you’re the person who’s presenting, you probably can’t do it directly. But, if you think it’s going bad, you can just walk off and they wouldn’t have anything to show, I guess.
NASIR: On Shark Tank, by the way, last week, Anne Wallace, one of our great writers for our blog, actually published an article. It’s kind of related to Shark Tank. You know, there’s so many legal issues surrounding when you’re doing this public presentation of raising money and the ramifications of that and who’s involved and going through the SEC regulations and so forth. Check it out if you have some time. It’s a good read.
MATT: Yeah, it is good. There’s a lot of information in there and, you know, people love Shark Tank. Maybe it’s just the circles that I’m always in but it’s the entrepreneurship and the so-called American Dream. It’s usually just an invention that someone tries to turn into something great.
NASIR: I like it but I also feel like it also gives a kind of a false impression to entrepreneurs too, don’t you think? I mean, people, they’re like, “Well, I’m just like that business so I can do the same.” You see that. You see the best and the worst of some of those candidates out there.
MATT: Yeah, and it does kind of give a false sense of hope and I can’t even imagine some of the ones they filter out. You look at some of the ones that have made it out on the show that are just terrible ideas and people that have dumped tons of money in there.
NASIR: Do you think they let them through as kind of you know how those reality TV contests go? They have bad ones and good ones. Do you think they do that?
MATT: It’s definitely not for the sharks to invest money into good ideas. It’s more so what’s going to be the most entertaining thing or the most interesting thing to put on TV. Sometimes, it’s really good ideas; sometimes, it’s really bad ideas; and, sometimes, it’s just interesting people that are on there. That combination gives it a pretty… I mean, that’s why it’s so entertaining and the applicants get kind of bombarded and I’ve heard an interview of Mark Cuban about it and he said, you know, they’re up there for an hour and a half.
MATT: What we see is only, what? Five, six, seven minutes?
NASIR: Wow. One contestant or one business could be there for an hour and a half and they only show a few minutes.
MATT: Yeah, he said that in an interview recently that I listened to. But, yeah, his big thing was, well, he doesn’t do it as much because I think one of the other guys does it but the people that were going on there strictly for publicity and not, you know, walking in there, knowing they weren’t going to accept an offer, or maybe walking in there with a value, and the sharks call them on it. They’re not dumb. They say, “Your valuation’s way too high,” or “This is a good offer,” or “We think you’re here for the wrong reasons – just to get free publicity.” I mean, it is very great publicity but I guess ABC could always pull that, too.
NASIR: Yeah, I think about that all the time, but I’m pretty sure Shark Tank – from what I understand, and I could be wrong, this is just based upon rumor and so forth is that – they get a percentage off the bat just by appearing on the show, right?
MATT: So, ABC used to get, I believe it was two percent no matter what. I thought they’ve since gotten rid of that, but I could be wrong.
NASIR: Okay. That’s kind of lame. I mean, I understand it because, by getting on that show alone, like you said, even if not making a deal, there is promotional value. But a second thing to think about is, once you sign that release, and even if you’re on for an hour and a half, those producers can cut it any way they want. If they want to make you look bad, it doesn’t take much to do so even if you have a perfect kind of scenario there.
MATT: Yeah, and I’ve talked to people that have been on or know people that have been on the show. Someone told me, “Well, next time you watch, look who’s asking the question and look at where their eyes are,” because, oftentimes, they’re not looking at the person who asked the question because they cut a question from one and an answer from another to make it seem…
NASIR: Oh, yeah, and that happens in all reality shows. They do these close-ups and reactions that don’t even make sense and are exaggerated, et cetera. That’s the movie magic!
MATT: Well, I think we took a few turns here. I don’t know what our takeaway is.
NASIR: I think probably the most important thing that we’ve learned today is what the best show on television is currently. That’s a big take-home. And then, second, about just having a good understanding about privacy rights and release rights. You know, these are kind of general things but even when you’re doing your own promotions – whether it’s commercials, TV, or even having any kind of involvement in any reality shows – this could come up.
MATT: Yeah. I mean, as a business, there’s times when you might need to have people sign a release. Just be aware of that. I would imagine you can get a pretty general release. I think they’re floating around, pretty easy to find. Just make sure it has the right words in it though.
MATT: It’s not overly burdensome.
NASIR: I think that’s it. Well, I thank you everyone for joining us.
MATT: Keep it sound and keep it smart.