Can You Tell This Story? Legal Considerations with Attorney Allie Levene
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In This Episode
As nonprofit storytellers, navigating the legal landscape of consent, privacy, and story ownership is daunting.
In this episode of When Bearing Witness, we sit down with attorney Allie Levene to answer your most pressing questions about storytelling and the law.
What elements should a media consent form include to truly protect both the storyteller and the organization? What should we keep in mind if we want to compensate story contributors? What rights do storyowners have if they want to edit or retract their story after it’s been published?
Allie tackles these critical questions and more, offering practical advice to help nonprofit professionals navigate the complexities of trauma-informed storytelling.
Listen in for actionable steps you can take to safeguard your nonprofit and honor the rights of story owners.
About Allie Levene
Allie Levene is a lawyer who helps clients understand their legal obligations and options without all of the confusing legal jargon.
After building her career as both in-house and outside counsel for various Connecticut businesses, with a particular focus on small businesses and nonprofits, Levene founded her own practice, Levene Legal.
Her extensive experience in litigation and administrative proceedings, especially in employment, civil rights, and general liability matters, led her to recognize the critical importance of preventative legal services—a realization that became the cornerstone of her firm's mission.
Connect with Levene
Levene Legal | LinkedIn | Instagram
Connect with Maria
The When Bearing Witness Podcast is produced by Rustic Roots. They are video storytellers passionate about sharing the impact of nonprofits. From story ideation to beautiful and powerful videos on screen, they've got you covered. Learn more at Rusticroots.co.
Transcripts
Maria Bryan: Okay, y'all. You are in for a treat today. We have Allie Esquire in the house to answer our questions on story gathering and telling legal questions. We're going to talk a lot about media consent. And before we dig in, Allie, first, welcome. I'm so thrilled to have you here. And let's start with some legal disclaimers before we jump in.
Allie Levene: Well, first, I'll say thank you for having me here. And then yes, legal disclaimer, I always have to put in there. Just, we're going to be talking about some legal stuff. Just, you know, this isn't legal advice specific to anybody. It's some general knowledge to help guide you as you go on your own journey, figuring out legal stuff. So just always got to put that out there.
Maria: Absolutely. And if your nonprofit has a lawyer, get your lawyer involved in your media consent forms and your workflows. And if you don't, most nonprofits will have a lawyer for something for some matter just on call. And I think it's worthwhile once a year to bring them in, to look at your story gathering workflows, processes, and media consent form.
And I think Allie's voice today will help you kind of think about what kind of questions to ask them.
Great. So you have had a bit of a journey. As a lawyer, you were a compliance officer at the Goodwill, and you've been in-house for several Connecticut businesses, and now you have your own law firm, Levine Legal. So tell us what inspired you to be in-house to now have Levine Legal.
Allie: Yeah. So, it definitely was a journey. I have been practicing law for a little over 10 years and a little over a year ago is when I decided to open up my own firm. And there were really two big reasons. So the first is I've always been told I was that kid growing up that everything has to be fair, right? Like this sense of justice. And I felt like the current legal services system and the way lawyers work just isn't fair or equitable or accessible.
I spent a lot of my career representing clients, small businesses, and nonprofits. Something went wrong in litigation and things like that. And I would see almost every time it could have been avoided with proactive legal services. But it's not affordable or accessible. So I didn't like that, and I decided to change that. And so that was the main impetus towards founding my own firm.
And the second one was really realizing I needed to find a work arrangement that worked for my lifestyle, my health. I have multiple chronic illnesses. I have Crohn's disease, ADHD, things we talked about. Right. And I'm a single mom to two eight-year-old girls, identical twins. And I want to spend as much time with them as possible. So, I get to build my business the way I want and around my family. And I'm loving doing it.
Maria: Your journey is so similar to mine. I think a lot of us who are in house for about five to 10 years and end up in consulting have a similar journey. So thrilled to hear that. You know, storytellers face so many ethical and legal dilemmas, more than we probably think. And what I want listeners to know is that you don't have to make these decisions in a silo.
So I'm going to bring up a lot of these will have to do with consent, and happy to hear other things that we're not even thinking about. But just wondering what guidance you can give on some of these experiences or incidents that we typically have as storytellers.
So what if you are talking to one of your program staff or a nurse, and they're sharing stories?
You know, me, when I was a nonprofit marketer, I would go to program team meetings just to kind of get intel on stories, right? So you get a lot of stories and you get a lot of beautiful stories. And sometimes it's really clear when we need consent if we're sitting with someone and we're interviewing them, but if we're telling a story of someone that we kind of heard secondhand and we're stripping so much of the details. And so maybe this is even an anecdote we're giving during a webinar, or maybe it is something that we're building into our appeal. The line gets so blurry. When do we need to get consent from a storyteller?
Allie: The line is definitely blurry, but I'm gonna explain why it's blurry and what you can do about it. So, I love this question because it is so relevant. But it also demonstrates, you know, you started off explaining legally and ethically.
A lot of people don't always realize legal and ethical are not always the same. The bar for ethical is much higher. What I like to say is just because something's legal doesn't mean it's right. Just because you can do it doesn't mean you should.
I'll start with legal for your question. When should you get consent? Now, again, with the preface, every state may have different requirements. So this is in general. And so this is where we said, right, taking this information and bringing it back to your attorney or doing some research on how that works in your state.
Legally is, you know, is there information that can identify the person? If somebody else was looking or reading what you're sharing, is that person identifiable? Well, that line is really blurry because what may be identifiable to me may not be identifiable to you or what's identifiable. This is when we talk about risk management and all these processes of having checks and balances, just get the consent. I realized from an administrative point, it may be more onerous.
But also, this is where we see ethically, even if legally you can share that, it's still that person's story, and should retain control over that story. So I think really that says when in doubt, get consent.
Maria: When we say ethics versus legal. Ethics versus legal. I think sometimes legal is the thing that you have to do. Ethics is a little bit more of a good, nice thing to do. But it could be legal, but it still has incredibly harmful consequences.
So if you think that you're removing enough and you're talking about, oh, I met this lawyer, she's a single mom, she has twin eight-year-olds, and they're thinking, I'm not really giving away too much information, but it turns out that like you could be in danger for any reason, giving away that information. Right? So it's not just like, let's be respectful of Allie. It's like, actually, you don't know all the background that might actually bring harm to this person and family.
Allie: Exactly. And especially because consent isn't just consent to share. It's consent how to share. I may, Maria, like tell you those things and say, you have consent to share a mission moment at your board meeting, right? That's just going to be, but you don't have consent to put that story in your annual appeal. That's now going out to people, right? So consent, I'm hearing that story secondhand, I have no idea what that person, if that person knew it could even end up over here, and that's not ethical.
Maria: And then when the media picks it up...
Allie: Well, and that's what storytelling, the main focus is always on, right? The person whose story it is, but ethical storytelling also requires you to consider the interests of your organization, and you need to protect the interests of your organization. And so if you're doing things like not getting consent when you should, and there is, even if it's not financial, but reputational, right, that's going to have a negative effect. That's going to hinder mission impact. And so that's what the consent does. It really is a risk management tool to help you safeguard what you're doing and to be able to keep doing it.
Maria: Okay. I want to underline that for listeners when you are feeling like there's so much on your plate and you can't get leadership to agree to one more thing. A media consent form just feels like one more thing. One way to frame it is not only is this protecting your story owners, but protecting the reputation of your nonprofit. I think this is really important to articulate to leadership.
Allie: Risk management isn't just for for-profits, right? It's also for nonprofits, and you have to think about it a little different, right? Because what is the risk even to your mission to the participants, right? There's a risk of retraumatization, right? That's a risk that needs to be acknowledged.
So what do you need to do? So the whole storytelling process has to be looked at in a risk management focus because all of these different risks. They could have a big impact on the person sharing their story and the organization where even others are not involved, right? Because now others may not share their story. There are these ripple effects, and that all has to be considered, and that all should be enough to say that is too big of a risk. We want to make sure we have written consent, or we've followed certain procedures and things like that because it's too big of a risk to take.
Maria: Absolutely. Media consent forms have come a long way from when I was in-house quite a bit ago, where the most trauma-informed and ethical is that they would be translated, but they had a lot of words, and really the only thing you could do was sign for yourself or sign for a child. And then it just said, you know, we will be taking your audio and your image and everything and sharing it indefinitely, but in a ton of legalese.
Right.
And this is the media consent form and folks are signing this as they're joining programs. And I do think we are coming a long way in creating media consent forms that are protective of organizations but are really becoming more culturally appropriate ethical and trauma informed for our story owner. So let's talk about that. And you alluded a little bit to, it's not just about the story. It's where it ends up.
So, what should we be thinking when we're creating media consent forms? What are the kinds of elements that we should consider?
Allie: The two most important, and we touched on these a little, is that actual consent? What are they consenting to? And that's two different consents. They're consenting to what they're sharing. Like you just said, we normally see you're pushed in front and it just lists everything possible.
Not okay. It's got to be as specific as possible. Is it their name? Is it whatever it is? It needs to be specific. And the same thing goes for the second piece of that is how it's being shared. There's a big difference between, like we said, putting it on your annual report and taking that same picture and putting me on a billboard, right? Consent to being in your annual report in no way is informed if you then put it up there.
So that means, too is going back and then doing another consent, right? Like, okay, great. It was such a hit in this way. We used it. It really drove impact. We want to use it in another way, just because you have that content. If you don't have permission to share it in the specific way, you need to get that first. I think those are the most important and as specific as possible. And I want people to be scared that being specific means it's going to be long. Consents can strip legalese. It should be in order to be informed, right?
The person needs to understand it. If it's in legalese, it's not understandable. And I think the other piece, too is not so much what's in the written consent, but what's part of the consent process. Are you just emailing them this? Are you just handing them this? No, the person who is giving it to them needs to understand and be able to answer just some basic questions. You know, they don't need to be a lawyer. But explaining, you know, what does it mean here? If it says it's irrevocable, it means, you know, once it's out there, you can't take it. It doesn't mean we can use it for whatever we want, but still, it's not just about what's in that paper, right? You've got to also have those conversations. And I think the really important thing you said is right. Translating, it needs to be accessible and in the format for the person that's signing it.
Maria: I would love to see more consent forms that look a little bit like Mad Libs or just a lot of checkboxes.
Right.
Allie: The form that I use for clients is a full page. Because it has to be readable, understandable, otherwise it's not informed. Right. And this is where, again, we talk about the difference between legal and ethical legal. Okay. Maybe, yeah, maybe they should have understood. We can debate that all day, but ethically informed consent, they have to understand and appreciate what they're signing.
Right. And it's why I say children should not be signing releases for themselves because could a child really understand when you say your picture is going on social media. That's impact and things like that. So it also raises the point of if your program participants, you have to make sure they're able to consent depending on, you know, like in a certain human services field, right? You may be working with adults with developmental disabilities. You have, can they consent or who can consent on their behalf? So just because a person's of age, isn't always an indicator that they can give informed consent.
Maria: I have had so many incidents for either myself or in-house where someone signed the consent form, and they seem to have full understanding of consent. And for whatever reason, they want to retract their story, retract their image. I have fought tooth and nail to get a story removed about me because I felt like it gave away too much information about my family. Here's my question. What are a story owner's rights after publication, especially when it comes to editing the piece or story retraction, which I think are some of the biggest fears that folks come in when they agree to share their story.
Allie: And rightfully so, right? We're giving this part of ourselves but we still want to make sure it's done properly. Even if it's just a picture, right? Even if it's removing identifying information. As far as what rights story owners have, it really depends on what's in the consent or what was the verbal consent. Did they irrevocably give, right? Or was it just a blanket, I give. I think if you don't have language in there saying it's irrevocable, it's, you're basically going back and forth arguing, is it?
So, what does this all mean, right? This is taking all of this nonsense legal stuff is you need to have provisions in there that talk about review. Can they review it before it's published? That way the expectations are clear, right? They sign that it's in there. You publish. They're like, I didn't like it. You're like, it gave you the chance to review it. You said no.
And as much as we want to remove it, we can't because right, the financial, you've got something running on TV or you've paid all this marketing. The ethical thing would be not to remove it because that's not ethical to the organization, right? To eat those fees or whatever it is, but not to use it anymore, right? We'll say, okay, look, we can't do anything about what's out there, but we will, you know, and that's where you talk with the financial team and management to say, what can we do with as little impact to the organization while still honoring that this is this person's story.
And then, as far as retraction, again, if it doesn't say it in there, it can go either way. And that's why I always include language that says I irrevocably give if it's needed to have no right of revocation. If they're going to have a right of revocation, it's got to be in there. And so this is really just the consent should contain everything, including those things, but I promise you can still do it and not be 10 pages.
Maria: Right. And I appreciate how that isn't so black and white because sometimes we have these conversations where no questions asked, we should remove. And I think that there are going to be circumstances where it's just, even if it's going to be pulling the plug on something really expensive, that it'll protect them, but I also think there's going to be circumstances where they've agreed to tell their story. They signed off on it and then maybe didn't, you know, like how they looked.
And I know this sounds petty, but this is the reality of storytellers. Like this is what I'm hearing from storytellers where it gets so sticky. It can be very complicated and nuanced.
Allie: But this is why when I talked about right proactive legal services being so important, because this is where you consult with the lawyer real quick, right? Because of the problem it could turn into, so invest that time now, and this might pick up the phone and say, okay, this person looks at the consent, all that, that's what proactive legal services are.
Maria: And it can also be a conversation. Like, would you feel comfortable if we make this anonymous? Instead of just completely removing the story, I'd imagine, right?
Allie: Right. It's really about finding what we can do that makes both parties happy. We can make adjustments, so you're not as identifiable or remove details you're not comfortable with. It's not one size fits all - it depends on the situation and subject matter.
Maria: In your experience, since you've become "Ask Allie" where people come to you with questions, what are some misunderstandings or pitfalls organizations have when creating and using media consent forms?
Allie: We've touched on this in almost every question we've discussed, which really highlights how much of a misunderstanding it is. Consent forms are not one size fits all. They can't just be blanket "name, likeness, voice, use it for commercial purposes." They need to be specific and tailored to each project and individual regarding what they're consenting to and editing rights.
Like we discussed earlier about using content on a billboard - you can't just use that one consent form. You need to get another consent. I want to dispel that myth: consent is not one size fits all.
Maria: What other legal questions are you getting about storytelling and gathering that maybe I haven't thought of? Just curious about what's coming up for people, what challenges they're facing.
Allie: One issue I've seen a lot lately and gotten questions about is the capacity to consent. Who can sign the consent form? If you're an agency that gets state funding to do programs, like we talked about before with adults with disabilities - who is the decision maker for that person? Can that person consent? We see this in many different areas: with children, with the elderly, with anyone who may have some sort of diminished capacity where they can't fully consent. You need to talk to their parent or guardian. Even if they don't have a legal guardian, if you're seeing signs through body language or verbal cues that make you believe they don't really understand, then you should not have them sign that consent. You should either talk to someone else or decide that maybe this isn't the story to tell.
Maria: What other sticky questions are coming up?
Allie: There are some really important ones that I rarely hear discussed. Most important is: are they being compensated?
Maria: This is a juicy one.
Allie: Typically, they're not being compensated, but if you don't put that in the agreement and they come back saying, "Oh hey, this was in this commercial, I want to get paid for this" - well, where's your written consent addressing that? So, it's not just about consent. Sometimes maybe you do pay, but then you need to think about volunteer status and rules regarding volunteer stipends and payments. You have to consider all of these things.
Whether you're giving compensation or not, you need to state it in the agreement. It really is like an agreement - it's what they're agreeing to, not just consent. Another issue is around intellectual property. When you're sharing the story, whether it's going to be a brochure or an ad, you're creating intellectual property. Who owns that intellectual property? The standard is that the organization owns it, but you need to make sure that's clear in the agreement. It can be a simple sentence - we don't need two pages of legalese because that's not understandable, and if it's not understandable, they're not really giving informed consent.
One of the most common things I hear in my practice is, "but it's never happened to us."
Maria: Yep.
Allie: "Well, no one's ever claimed that before." This is where the risk management process is so important. Maybe it's never happened, but if it does happen, the potential damage is enough to justify taking preventive measures like including specific language. You are stewards of your mission, of the assets of your nonprofit, of the employees - you need to do what's in the best interest of the organization to protect it.
The last important element is a release from liability. Once content is out there, you can't always control it as an organization. So you need a general statement that the organization is not liable for claims or damages related to that use - as long as the organization is following what it's supposed to do. If the organization breaches the consent or uses it for something they're not supposed to, that's different. We're talking about unintended consequences - like if your employer found out and you got fired, that's not the organization's responsibility.
Maria: I have a pop-up question.
Allie: Yes. Just so you know, my bucket list item I haven't achieved is to be on a game show because I love fast thinking like this.
Maria: Okay.
Allie: So if you want to do a speed round, this is right up my alley. No pun intended.
Maria: I want to talk about things that story gatherers and tellers should be thinking about but might not be - things like plagiarism, copyrighted images, and copyrighted music. What kind of guidelines should we be building into our processes, and how can we keep these things in check?
Allie: There are different mechanisms you can use in a release. This is a great example of why every organization's release may look different. The issue of plagiarism may not be a big concern if you're just sharing children's stories from an afterschool club. But for organizations where it is a concern, this is where release language becomes important. You need to mention specifically the risks associated with plagiarism and state that the person, not the organization, will be liable for any damages if a third party were to sue.
Maria: Hmm.
Allie: If someone claims, "that's my story," the organization will have language to say they're not responsible - you can only go after the person who shared it. You're also going to have a representation where story contributors agree that this is their story. If someone is planning to share a plagiarized story, that clause alone is usually enough to make them not sign. It's both a protective measure and a safeguard for your organization's interests.
Maria: Interesting. Yeah, again, things we don't think about.
Allie: A lot of people see the law as boring, but I love it because I want people to stop thinking of it as just a defense. You can use the law as a strategy - it gives you ways to be creative and use it to your benefit. It's really a giant puzzle with all these pieces. The most important thing, and why I think it's so fun, is that no organization is the same. I could be doing a media release for two different organizations on the same day, and our conversations and what I give them can be completely different. That's why the law is so fun - both documents are still legal and fit their requirements.
To make legal services more accessible, we need to make it possible for organizations to actually implement them. I'm not going to give an organization with a thousand employees the same strategies or processes as an all-volunteer organization. They need to be able to manage their legal obligations with a system that fits. Every storyteller is different, every organization is different, and I love getting to be part of helping them keep doing this. I just get so excited about this.
Maria: I love your joy because I find it so overwhelming when folks just want a one-size-fits-all solution. This is something I want us in the trauma-informed storytelling world to know - how different every part of this is going to be for every organization and circumstance. I'll take some of that joyful energy from you and try to share it with people. I think there is joy in knowing we can be flexible in this.
Allie: Even just the example you gave is perfect - the checkboxes. You can have one form, but then you'll go through and do the checkboxes and things like that. So it can still be easily managed in a way that works for you without being one-size-fits-all. I know it sounds scary and like a lot, but it is manageable with the right help and team.
Maria: Right. Wonderful. Okay. I'm sure there are more "Ask Allie" questions out there.
Allie: Well, there are always more, including from my children, every five seconds now.
Maria: So how can listeners connect with you? We have nonprofits, we have small businesses, and if folks just want to connect with you about anything legal or specifically want to talk about their media consent forms - how can they learn more about Living Legal?
Allie: LinkedIn is the place to be. LinkedIn is indirectly responsible because that's how I got connected with Memory Fox, and that's how you and I got connected. I post a lot on LinkedIn, sharing insights related to consent, nonprofit operations, small business stuff, and contracts. It's a great platform. You can reach out to me there if you want to talk more specifically about your organization or if you just want to talk about legal stuff and are as excited as I am about it.
Maria: Allie, thank you so much for bringing joy and excitement to these really complicated, nuanced questions. I have less of a feeling of overwhelm and more of a feeling of "okay, you know what? We can be flexible. We can take these case by case, and we can be, most importantly, proactive."
Allie: Yes, proactive and protective - protecting the people who are telling their stories and the organizations that are working with them. Both can be done at the same time.
Maria: Well, thank you for the work that you do. And thank you so much for coming on the podcast.
Allie: Thank you.