because you can't spell innovation without t.o.s.

So Sarah Lacy tees off on the startups that demo'd at TechCrunch50 this week:

Not enough passion, not enough swinging for the fences, not enough trying to change the world. There were too many people building safe businesses, too many companies just trying to make existing things slightly better, and too many people wanting to be the next Mint.com, not the next Google.

I wasn't there, and I only half-heartedly followed along in blogotwitland, so I'll take Sarah's word for it -- she's smart, she's great writer, and she does a good video interview.

But! I think there's one company -- Udorse -- that is pushing the boundaries in an area where we haven't seen much innovation lately...the all-important terms of service.

First, some background: Udorse is a "visual endorsement engine" that lets you tag photos of you and your friends with endorsements of the products in those photos. Here's Robin Wauters' Techcrunch description of the demo (or you can just go watch it):

Udorse co-founder Geoffrey Lewis picked a photo of him and a friend who works as a fahion designer. Endorsing in this case is done by selecting an item – the dress she’s wearing – and identifying it with a description and associated brand name, with the extra ability to add links and commentary to the highlighted item. Every time someone sees the photo and clicks the associated Udorse icon or link, they are able to gather more information about the product or directly be referred to the website where it can be bought.

I know. So good, right? It gets better, though. The real innovation lies in their terms of service. Most of the TOS is the typical stuff about your account and limitations of liability and content ownership and all the things that no one ever reads.

But check out section C, titled "Udorsement Rules."

By Udorsing a photo (a "Udorsed Photo"), you represent and warrant that (1) you have the written consent of each and every identifiable natural person in the Udorsed Photo to use such person's likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use; ...

I know. "Written consent." So good, right?

Wait -- before you roll your eyes, think of the opportunity they're creating: if Udorse takes off, there's a huge need for a marketplace of third party developers of workflow solutions that help you quickly and easily get consent from all your friends in your Udorsed photographs!

In the meantime, I've Udorsed a photo of this TastyKake truck, since it's not a natural person.

Seriously, I really do love TastyKakes of most varieties.

Comments

[Matt Jacobs]

I love that you read the terms of service. I award this post three tastykakes.

[www.facebook.com/profile.php?id=23004]

Hey Michael, this is Trevor from Udorse. I'm sorry you had to paw through the legalese - I've been working on a human-readable version of the tos, but it got bumped in the runup to TechCrunch by things like making sure our servers didn't melt.

Anyway, we need consent from everyone in a picture because people have what's known as a publicity right that means you can't sell their image (for example, by using it in an ad, even one you make yourself) without their permission. We asked our lawyers and everything. (That was expensive) We're certainly not going to sue anybody for not getting signed permission slips, but we need to be able to take pictures down if someone who's in one complains.

The good news is, we think we've worked out at least a partial workflow solution. Part 2 of the tos ("License Grant") grants Udorse and other users a license to use your likeness (and therefore you one to use theirs) so if the people in your photos are already Udorse users, you know you're covered. We even had the lawyers narrow the scope so that we can't sell your pictures to a third party, which certainly wasn't in the first draft we got from them.

It's a tough balance to strike to be able to pay users and still respect everyone's privacy. But we actually are trying to be innovative along that axis. Either way, it's got to be an improvement over trying to negotiate endorsement deals on your own.

Let me know if you've got any further thoughts; we've put a lot of though into trying to make this work, but we're always open to ways to do it better.

Trevor

co-founder, Udorse

[Michael Sippey]

Trevor -- thanks for stopping by! I was clearly just trying to have some fun with this, but as someone who has some responsibility for thinking about these things in my day job, I actually do occasionally read terms before accepting them...

I think I understand the core of the issue you're outlining here -- that if you don't include this section, then I could just photoshop me, my favorite celebrity and my favorite product in a photo together, upload it to Udorse, tag it and start earning $$ from the revenue. And that would put you guys in a position of liability for unauthorized celebrity endorsements, etc.

As you point out, a plain language attachment or FAQ that lives alongside the TOS would be helpful here, obviously. And of course, if you do get everyone of my Facebook friends to be Udorse members, then you're covered. Which leads to the viral solution, which is having the app encouraging users to tag their friends in the photograph and invite them to join Udorse so everyone's informed and covered...which will most likely a bunch of people getting annoyed by the app...

In the meantime, I'll stick with photos of TastyKake trucks. Because seriously, I love TastyKakes.