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Fitness Releases

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Biletsky Law - Fitness LawWhen going to work out in a gym, compete in a competition, or perform on the set of a production, you will likely be confronted with a release document to sign. While these release documents come in many shapes and sizes, the basic function of all of the releases is the same, which is to relieve the other party from liability.

In gyms, the predominant concern is that the gymnasium is providing a facility and equipment which you could potential injure yourself on. Gyms often require releases when signing up or when visiting to help shield themselves from liability.

When competing in a fitness or athletic competition, you are usually required to sign a waiver and a release form as well. With a competition, there is additional concerns beyond providing the facility and equipment in that you are also pushing your abilities to the limit and are at a greater risk of injuring yourself.

With regards to filming releases, regardless of the type of filming that you are involved with, there is undoubtedly going to be some kind of release or waiver which protects the production company from liability (and also allows them to use your image, amongst other things). This is even more so the case when dealing with productions that involve some kind of athletic or fitness performance. The importance behind these types of releases is the fact that you are being given access to certain facilities. Furthermore, you may also be given instructed to perform  certain activities where there is a high risk of death or serious bodily harm.

So, what’s in these agreements that act to protect these gyms, competitions, and productions from liability?

Acknowledgment of Risk

One of the first parts to the release is going to be a section where you formally acknowledge the inherent risk in participating in whatever it is that you are signing up for. Whether it be the 30 foot rock wall at the gym or the sword fight scene that you are featured in. If there is some kind of activity or thing that carries with it a risk of injury or death, this paragraph will make you acknowledge that such a danger exists.

Assumption of Risk

This section comes with it more history and controversy than most other sections. There have been cases upon cases dealing with the assumption of risk and whether they are against public policy and therefore invalid. One of these arguments is the fact that although the activity may be inherently dangerous, the operator of the activity still has a duty of care to keep you safe.

There are other logical considerations to take into account as well. For instance, sky diving has an inherent risk of harm that comes with partaking in the activity. In a world where the assumption of risk always prevails, the sky diving operator wouldn’t be held to such a high duty of care since you already assumed the risk. In such scenarios, what need is there to keep all of the safety procedures in place or the maintenance of the plane at top performance?

Release of Liability

You’ve acknowledged the risk, you’ve assumed the risk, and now you’ve taken the next step and released the other party from liability. This is the third step in the release where you agree that regardless of what happens, that the operator is not liable and that neither your nor anyone who may succeed you (in the event of death or serious bodily harm) will be able to bring any claims against them. Some of these releases will go pretty far as to release any kind of liability, even so far as to release them from liability resulting from their own negligence.

Disclaimer and Waiver of Warranties

Depending on the service or product, there are certain inherent warranties that come with the product or service. In certain instances these may apply more towards products themselves (think vitamins and supplements) where you are signing off that you do not expect the product to perform in a certain manner.

Miscellaneous

There are of course other provisions. Depending on the activity or situation, there may be terms which require you to pay for all of your own medical expenses, but which authorizes the establishment or company to call emergency personnel in the event of your injury. One reasons for this is that they do not want to pay your medical expenses. However, they also do not want your condition to worsen while you are injured on their premises. So instead, they want to have the authorization to be able to call and get you out of there as soon as possible.

Whether you own the establishment, are in charge of production, or are the athlete that is signing off on the waiver, it is important that you be aware of what kind of terms you are agreeing to with liability waivers and releases.

For more information on liability releases or for legal assistance regarding releases, contact Biletsky Law.

Fitness Sponsorship

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“Making a living from doing what you love must be one of the most fulfilling things [that] a person can do.” –David Kimmerle.

The health and fitness industries are some of the greatest examples of people going out and doing what they love. In addition to being able to do what you love for work, being able to monetize on your accomplishments can be even more awarding. But the industry is not just about the prizes and competitions, the world of supplements and other health and nutrition products is an integral part to the fitness industry and provides a unique incentive to competitors and trainers.

Sponsorship is an essential way that athletes are able to monetize on their product. An athlete’s “product” is often considered their bodies and talents. When talking about sponsorship in the realm of sports and fitness, these companies are looking for the ideal person who can represent their brand and take their products or services to the next level. Whether it is because of the unique look that an athlete has, or because of the massive social media following that the individual has, sponsorship helps a product or service identify with their consumer base.

Having the look and having the talent that catch the eye of a sponsor is something that needs to be mastered in your field of specialty. However, once the lawyers come in and bring out the contracts, that’s where your hard work and skills have less of an impact and your leverage and negotiation skills come into play.

A sponsorship agreement can be divided into many different sections and it is important that you understand what each section means when you are presented with a sponsorship agreement.

The Compensation

Let’s face it, while you may love the product or service of the sponsor, just being a part of their organization may not be enough to sway you into signing a contract. Sponsorship agreements are somewhat unique when it comes to contracts in that the compensation is not always just the usual straight money deal. Certainly it can be, but often times it is a blend of money, products, and recognition. It is important before entering into a sponsorship agreement that you be able to identify what is important to you and what you expect to get out of the sponsorship relationship. This all depends on you as a person and where you are in your career. An athlete just starting out may have a hard time deciding whether the fame or fortune is more important in the beginning of their career. Whatever kind of compensation you choose, be sure that you make it clear to the sponsor what it is that you are looking for.

Conflicts

Conflicts in sponsorship agreements occur more often than one may imagine. One of the reasons for this is because many of these companies are “vertically integrated” and because they may not just provide one kind of product. Instead, they provide a multitude of products and may also be the manufacturers, distributors, wholesalers, and resaler of the product. When a sponsor has their hand in so many industries, the chances of you running into a conflict increases. It is essential that you keep track of who your sponsors are and what your limitations are as far as conflicts. In most cases, the contracts will very clearly outline for you what kind of products or services you are prohibited from being affiliated with, but for the contracts that don’t spell it out so clearly, it is important to be aware of what your sponsor does before entering into another sponsorship agreement.

Morals Clause

Morals clauses work to help prevent tarnishment or damage to a company’s brand or image. The validity and enforceability of morals clause is an entire issue in and of itself. Courts have battled with this time and time again, and whether this provision will be enforceable should be further down the road in your thoughts than what are in the these clauses.

Put the enforceability aside, it’s reasonable to understand why a pre-workout manufacturer doesn’t want a convicted murderer or a thief to be the face of their company. But there are some morals clauses that go too far in attempting to limit your speech and private actions. The basis to most of these clauses is that you cannot get in trouble by the law for certain things and it cannot come out in public that you partake in certain activities (for certain sponsors, drug and alcohol tests are mandatory and may come unannounced).

Your Duties

OK, so you’ve been sponsored! That’s great, but what do you have to do? Each sponsor requires something unique from the individuals that they sponsor. Some require that you post a certain amount of content on your social media pages, others require that you appear at certain events and ceremonies, while others require that you wear branded clothing of theirs when you are at certain events or even when you are out in public for a certain amount of time. It is important to understand what your duties are and what you need to do to make sure that you are not in breach of your contract.

There are many other provisions which go into these contracts and it is important that you are aware of the impact that each of these provisions have on your sponsorship relationship.

To learn more about sponsorship agreements or to obtain assistance in reviewing or negotiating an a sponsorship agreement, contact Biletsky Law.

WHAT TO DO IF SOMEONE USES YOUR PICTURE WITHOUT PERMISSION

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A couple of years ago one of my clients, David Kimmerle, had just started going out with a young lady. Eventually it got to the point where David was to meet her parents. Before David came to her house for dinner that night, her mother decided to look him up online. What happened next shocked both her and David. After entering David’s name into a search engine, the first images that came up were from a pornographic website. The website had edited David’s picture to include explicit content onto his body. Needless to say, the dinner did not go as smoothly as planned…

When someone uses an image of you, an image you took, or an image that you created without your permission it can cause serious reputation and economic damages. So what do you do if someone is using your picture without your permission?

Stolen picture

Having your image used somewhere without your permission can be detrimental to your image and reputation.

  1. Is it yours?

You first need to make sure that it is in fact your picture. The fact that it caught your eye in the first place is a good start but you need to do some investigating to be sure that it is actually your picture. Pursuing any legal action against someone without first being able to verify that it is in fact your picture can have serious consequences.

  1. Save it!

The very nature of online postings allow things to be moved, deleted, and changed very quickly. If you are certain that the picture is yours, be sure to take a screenshot of where the picture is being used and to gather as much information about the person, website, or company that is using your image. It is also important to make sure that you still have the originals. It is even better if the originals have some indication of the date they were created or published.

  1. Take action, maybe…

Now that you’ve confirmed that someone is using your picture without your permission, you have documented its’ use, and you have found out who is behind the unauthorized use; it is time to choose your next step. Many people’s first response is to sue for copyright infringement. While that may certainly be an option, there are several other courses of action that you should be aware of before going with any particular route. Also keep in mind that some people choose not to take any action at all and rather see the use of the picture as a way of gaining exposure. One suggestion if you do decide to not take action is to at least make sure that you are mentioned or provided with credit for the picture.

 

So here are some of your options:

Reach Out

  • Is this something that can be solved amicably? Sometimes simply contacting the person who used your picture can be enough to have them take it down. This is especially true if they inadvertently used your picture. If you do decide to reach out to whoever is using your picture, be sure to save a copy of the email or letter as it may be able to be used later on if they refuse to cooperate.

DMCA Takedown Notice

  • If you don’t feel like being so amicable or if reaching out to the user was unsuccessful, one of your next steps could be to send out a DMCA takedown notice. DMCA stands for Digital Millenium Copyright Act and a takedown notice allows you to request that the internet service provider (ISP) who is hosting the image take down the infringing picture. Sending a DMCA takedown is something that you can do on your own but depending on the circumstances, it may be best to have a legal professional do it for you.

Cease and Desist Letter

  • A cease and desist letter is seen as a formal demand for a person to stop a particular activity. This is generally sent to the individual who is using your picture without your permission. Although anyone can send a cease and desist letter, how effective it is can depend on a number of things. Having an attorney prepare or at least review a cease and desist letter can help increase the chances that the letter will result in your picture being taken down. In some cases, cease and desist letters from non-attorneys may even be disregarded or ignored by the infringing party.
Stolen image

Copyright infringement can be considered theft and is illegal.

Small Claims Court

  • Small claims courts are courts which only hear matters of small disputes. The maximum amount of recovery that can be requested will vary from county to county and from state to state. An advantage with suing through small claims is that you may not have to hire an attorney and can usually bring the case on yourself. The rules that govern small claims courts are usually very user friendly and are not like the rules that govern other courts of law.

Litigation

Litigation can by far be the most time consuming and costly option to go with as far as having your picture taken down. But it is by no means a rare occurrence. Copyright infringement suits, particularly those involving the right to use someone’s image, are very common. A successful lawsuit will almost always require you to hire an attorney to bring the lawsuit. The process of litigation varies in different jurisdiction, but generally speaking, a lawsuit is filed with the court against the other party and the other party has a certain amount of time to respond to the lawsuit. This time period is where most of the settlement negotiations take place as the other party will realize that you mean business and will attempt to avoid large legal fees or a judgement against them. If there is no settlement during this time, the case continues down the normal process of litigation.

In conclusion, your image and the images that you create are important to you for one way another. Whether it be because of your reputation or because it is how you earn your livelihood. Regardless, it is important to keep watch for infringing activities. While there is no single way to completely monitor the internet for the unauthorized use of your image, keeping a vigil eye and knowing your options is certainly a step in the right direction.