Mike Warkentin (00:02):
I will break your effing phone. One burly dude said that to a woman who was filming her workout in a gym in Toronto, Canada. She didn’t back down. She dropped F-bombs. He dropped more F-bombs, and it got heated. You can find the whole thing on social media if you want to see one example of influencers versus people in the background. More and more people, influencers, are filming their workouts, and lots of people in the background don’t want to be props and unpaid extras. So, what’s a gym owner to do? What do you do when you’re caught between an influencer and someone who’s in a witness protection program? Now I’m joking, of course, but it’s not funny, right? It’s not funny when clients are cursing each other out in the middle of your gym or if it gets legal. So, to help you, I’ve got a gym-owning lawyer here today. His name is Matthew Becker. He’s the owner of gymlawyers.com and Industrial Athletics in Pittsburgh. Matthew, thanks for making time for me. How are you?
Matthew Becker (00:50):
Always a pleasure, Mike. I’m fantastic. I’m fantastic. Always love the intros and hopping on here to help gym owners.
Mike Warkentin (00:57):
Well, it’s fun. We’re trying to make some light of the legal stuff that gets technical and tough. But, listeners, I did have Matthew consent to the recording of this episode. We made sure that that was taken care of, and now we’re going to ask him how you can cover yourself. So, Matt, let’s get into it. We’ve got all sorts of stuff. We’ve got privacy, free speech, publicity rights, private purposes, public property versus access to private property. It’s a mess. Where do we start?
Matthew Becker (01:19):
Yeah. Well, first I think we should identify, you know, like what are the potential issues here that gym owners are going to face? Because, you know, I think I even still struggle with this, like, “Well, I’m just pulling out my camera and getting some stuff on film. I’m just getting myself doing muscle ups, you know, what’s the big deal?” And I’m still, I have yet to accept that people make money by filming themselves and putting themselves on TikTok and Instagram and YouTube. What was that article that you released? What are they called? Like fitfluencers or something like?
Mike Warkentin (01:48):
Fitfluencers, yeah, and they make big money. Some of them. I mean, not everyone, but some of these people have huge followings, and they are monetizing stuff. But the corollary of that is like, I’m in the background bench pressing 405, and maybe I don’t want to give away my training secrets.
Matthew Becker (02:01):
Yeah, yeah, that’s a good point. That’s a good point. So, you know what—you’re right—what is a gym owner to do? Like, what’s the issue here? And so, we typically come up against a couple of different potential legal issues. Big time, you know, big stuff here. And one of them is invasion of privacy rights. Okay? And we’ll kind of talk about how these move into about four different scenarios—I think that I kind of broke this stuff down into as we go—but that’s a big one, okay? And that’s going to be primarily the individual who’s in the background or who’s unknowingly being filmed by somebody on their camera. And, you know, they have a right to privacy. They have a right to not want to be on camera. That’s why when you hit record on this, Zoom gives me this big, “You’re being recorded,” you know?
Matthew Becker (02:48):
Yeah. Okay. I at least know it. The other thing that we run into here is copyright issues. Okay? And this—the more that these fitfluencers get more and more traction, and everybody thinks, “Well, I can come into a gym now, and I can video myself doing some bicep curls, and that’s worth money, and somebody’s going to—advertiser is eventually going to pay me for that.” You know, we run into copyright issues, and the copyright issue here really comes into play when you have a gym member that says, “Gym owner”—in this instance—”You took my image; you got a video of me doing a back squat, and you’re now going to use that in your promotion. And because you’re going to use it in your promotion, it’s potentially going to bring more people in.”
Matthew Becker (03:31):
“So, there’s a monetary value to that video that you took of me.” And I’m going to use the word likeness throughout this whole podcast. Likeness is what we’re doing. Yeah. I’m using your likeness, your image, your video, and, and I’m using it for my promotion of my business to bring more people in. And so, this fitfluencer is going to say, “Well, you just took my image. That image is worth money. Okay? You are using it in your advertising, so you have to pay me to use that in your advertising.” Okay? So, we run into these copyright issues of imaging and, you know, another potential that I think a lot of gym owners don’t realize is running into copyright issues now with music that’s being played in the background too. You know, and everybody—every so often on the Two-Brain page or on the Gym Owner’s United Facebook page, somebody pops up and says, you know, “A company like BMI or, you know, any of those, they reach out, and they say, I have to pay this licensing fee in order to play music in my facility.”
Matthew Becker (04:27):
“Can I do it or can I get out of this?” And there’s—we did a whole podcast on that, I think about two years ago at this point. But you know, if you’ve got somebody in your gym who’s recording themselves and there’s music playing in the background, and that person for whatever reason has this giant following, you’re just raising the chances, if you don’t pay for a music license, that some company like BMI is going to come knocking on your door saying, “Hey, you know, turns out you’re playing music that you’re not licensed to play, so fork over $500 a year in order to play that music.”
Mike Warkentin (04:59):
And I’m going to throw one other one at you from the other side of it. What if you’re a gym owner and you have a fitfluencer filming in your facility, and your branding is in the background, and they’re making money, and your branding’s there, but maybe you don’t agree with what they’re doing. Or even worse, what if they’re shaming your clients in the background? And now it looks like your gym, Joe’s gym, is a place where fitfluencers shame average people in the background.
Matthew Becker (05:19):
Yeah. Yeah. And these are a couple of the issues that we’re going to bring up is sort of like our four highlights of the potential issues, the four major potential issues, that you run into. But yeah, very good, man, those are two really prominent issues. So, you know, let’s look at a couple states’ law stuff here. New York, for example, has a right to privacy, and they have a civil rights law that provides a right to privacy that prohibits the unauthorized use of a person’s name, portrait or picture for advertising purposes without consent. I mean, that’s like it right there. That’s what we’re talking about from that perspective of like that copyright issue of the gym owner taking somebody’s image and then using it to promote their own advertising. California, no surprise, has a civil code that provides a right to publicity that prohibits the unauthorized commercial use of a person’s name, voice signature, photograph, likeness without consent.
Matthew Becker (06:12):
And Indiana—and these are just a couple that I pulled—Indiana has a publicity rights law that provides a right of publicity that prohibits the unauthorized commercial use of a person’s name, voice signature, photograph, image likeness, et cetera, without consent. Okay? So, that’s just a couple of states that have very specific laws that a gym owner could get sued on under some of these circumstances if they’re using somebody’s image or somebody gets caught on film without consent. Okay? Um, so let’s kind of run into our four primary areas here that gym owners tend to run into. I think number four will be a little bit of a surprise, but number one, all right? And also, I’m going to use “footage,” if you’re fair with this, Mike. I’m going to use the word “footage” instead of constantly saying “photo or video.” Yeah. Footage. Going to say footage. Okay. Alright. So, a member is taking footage of themselves and captures somebody in the background.
Mike Warkentin (07:09):
Super common.
Matthew Becker (07:10):
Yeah. Yeah. I mean, almost impossible in a lot of gyms, right? And especially if you’re a gym owner and you’re trying to grow the gym, and you want the gym to be really, really busy, it’s almost going to be impossible that somebody’s not going to get caught in the background of this. So, what’s the potential problem? Well, if you’re a good gym owner and you’ve got a good waiver and everything, you’re going to have that individual who’s taking the video footage and potentially the person who’s caught in the video footage waiving the use of their likeness for your own promoted materials. Okay? But that individual who’s in the background of the video did not consent to have somebody else use their likeness within that video.
Mike Warkentin (07:54):
So if I filmed that person, it’s cool, but if my client filmed themselves and that other client was in the background, there’s no waiver that covers that because it’s between the client and the other client.
Matthew Becker (08:02):
That’s exactly right. Yep, yep. Yeah, there’s no—what’s considered, you know, you could say in the legal realm—consideration between the two of those that they’re okay to be videoing each other or one gets the other one. It’s only the gym owner going to each one of the clients. We’ve also run into a similar issue just on a side on this one of independent contractor coaches also then using the footage or the videos or the likeness of members when again, the members’ waiver is with the gym itself. And then gyms allow these independent contractors to come in and run their own little businesses within the gym, which, you know, we’ve done episodes on issues there, but this is another one of, now, this independent contractor is taking videos and using it for their own promotion, but there’s no privilege there; there’s no consent there.
Matthew Becker (08:53):
Anyway, alright, I’ll stop getting off on side tangents. So, here’s—the problem is this is where these rights to privacy, this invasion of privacy of those sort, those states’ laws come in: that now the innocent third party that’s getting videoed in the background says, “Hold on a second. I’m in the gym working out. I’m very self-conscious about my personal image to begin with. I certainly don’t want people to see me working out, hence why I don’t have a camera on me. Okay? So, gym owner, you’ve now allowed somebody to invade my privacy.” And a gym owner listening out there might say, “Well, wait a second, how am I responsible for this? This is the fitfluencer taking a video and catching somebody in the background. Isn’t that fitfluencer, the guy who’s actually …, who’s actually responsible here?”
Matthew Becker (09:42):
And yeah, okay, we can make that argument. That’s not going to prevent the gym owner from getting sued in the outright, okay? So, at the very least, the gym owner is looking at a legal headache to try to get out of a lawsuit. At the worst, they’re now, because it’s in their facility, they now have some sort of liability, right? So, how do we fix this first instance? First instance, I’m getting my video of bicep curls, and Mike’s unfortunately in the background—
Mike Warkentin (10:11):
Benching 405.
Matthew Becker (10:12):
There you go. There you go. There you go. Benching 405. But he’s embarrassed and doesn’t want anybody to see it. I was going to say benching 105.
Mike Warkentin (10:19):
Yeah, that’s probably more accurate.
Matthew Becker (10:22):
Okay, so pull out your membership contract, all right? If you don’t have one, there’s a good reason to get one. Pull out your membership contract, and let’s throw a little bit of section in there that if you know this is going to be a problem, that you’re now going to say in your membership contract that without permission from the gym, gym members are prohibited from videoing or taking images or anything of themselves while in your facility, okay? We can go blanket policy like that within the membership contract. And we don’t just want to put that out there like on the “Rules of the Gym”—I mean, certainly we can put it on like a “Rules of the Gym” poster or that we make on Canva and smack up on the wall. But this is one of these where you really want the gym member to acknowledge this policy, okay? And that’s why we stuff it into the membership contract. Because then when we get that signature on the bottom, they’re acknowledging and agreeing to that. So, at the start, you know, we can just put this big policy on there that just says, “No videos, no recordings, no” —essentially no cameras on the floor, which from my gym owner perspective, I think you should have a “no phones” policy anyway. But—
Mike Warkentin (11:27):
It’s almost that—we’ll call that the “no fun” policy, right? Then it’s yeah, right? But it’s just like you’re telling people you can’t film. And there is like the follow-on effect of this is that user generated content is a fantastic thing. Because that’s like one of the keystones of modern marketing. So, having your clients filming inside your business and promoting you organically is a really good thing. Is there a way to have like a different policy, or are we locked in there?
Matthew Becker (11:51):
So, let’s go into sort of like scenario number two. Okay, well, does this really fit with—I want to answer your question, but let’s kind of move on to scenario number two and—
Mike Warkentin (12:01):
We’ll get it at some point.
Matthew Becker (12:02):
I think we’ll catch it. I think we’ll catch it in scenario number two. Scenario number two is you find out, like you said in the beginning, Mike, that now we’ve got this fitfluencer with 25,000 followers, 45,000 followers seeing me flailing around on the leg curl machine or something. And I look funny, and I’m face down, alright. I’m doing my leg curls. So, that guy pulls out his camera and starts filming me looking funny, and he is going to put it up for his 45,000 followers to see. That comes back around to me at some point, and now I’m really mad because I didn’t consent to be made fun of.
Mike Warkentin (12:38):
And this happens a lot right now. There’s actually this guy, I believe his name is Joey Swoll, he actually breaks down and like analyzes videos where this is happening. Because what’s happening is, like, there was one woman who did it very famously where she was like talking about how someone was creeping on her in the background. It was a dude just kind of like looking over or whatever. And like, he might’ve been looking at her, he might’ve been looking at the clock, but she called him out. And this happens regularly now. So, people in the background are getting very upset because they’re being shamed publicly for something they may or may not have done in front of thousands and thousands of people. And it gets really tough.
Matthew Becker (13:08):
Yeah. Yeah. And that’s going to be a very bad reputation for that gym, okay? Because you can almost guarantee that the fitfluencer who is now posting this video is also going to tag the gym. “Get my name off of that, get my gym off—.”
Mike Warkentin (13:25):
You lose at least one member in the best-case scenario,
Matthew Becker (13:28):
Okay, so maybe, maybe perhaps in this instance, this is when we really want that blanket policy if you’re worried about that of like, “No cameras on the floor, no videoing on the—” But if a gym owner wants to say, “You know what, let’s back it up there, attorney. I don’t need to be a complete Buzz Killington here.” Then what we can do is we can kind of carve out some language here, and we might put in the membership agreement that you as the gym member simply are not allowed to either record video or take a picture with somebody else in the background or of somebody else, period. Okay? So yeah, we’ll let you do your muscle up video or whatever, as long as you’re the only one in the video, okay?
Mike Warkentin (14:15):
Tough. Still hard. Hey, in a big gym with group classes.
Matthew Becker (14:18):
Yeah, yeah, which can be really hard, right? Even if you like give your camera to the coach and you say, “Hey, will you, will you take a picture of me doing, or like take a video of me doing pull-ups in the workout?” Well, let’s just say it’s like pull-ups and box jumps or something like that. And meanwhile you’re doing your pull-ups, and a gym member walks through the frame in order to go to their box jumps. I mean, you just violated the gym’s policy. Okay? So, this stuff can become very, very, very specific, very particular. And it’s just on the gym owner of like what they’re comfortable with—understanding these ramifications with the invasion of privacy and the copyright and the free speech and things like that. And as long as you’re comfortable with that, that’s what this is designed to do is raise these issues to the gym owner so that the gym owner can then make the decision about what kind of policy. But I’ll say, you still need to put these things in writing, and you still need to have these policies signed off on by the gym members acknowledging that they understand these policies.
Mike Warkentin (15:18):
And I dealt with one, it was a group of 55+ athletes, and one of them did not want to be filmed at all. And so, she did not sign that. She crossed that out of my waiver, didn’t sign it. I had to make a note of that. And so, when I take pictures, I would have to angle and make sure she wasn’t in the shot, or I would have to blur her face, which now with AI, you can just be like, “Remove person on left,” and, you know, it’ll happen, right? But that was what I had to do. And often you’ll get run into this with kids and so forth. Parents don’t want their kids’ images used. You have to kind of frame the shots properly, compose them as you see fit or blur faces and things like that. So that’s one option that I ran into. And this was years ago before there were fitfluencers in my gym.
Matthew Becker (15:56):
Right. And that just brings up a really good point, again, kind of maybe going down a little side road, but it all fits into play here of, you know, we’ve got the images of the people in the background. And you’re right, I had the exact same scenario in my gym. I’ve had a couple of individuals come in, and they just, they look at my waiver. My waiver has a very robust likeness portion: You’re going to be on camera. We reserve the right to take all the pictures and all the footage and use it in all of our promotions. And, you know, I’ll talk again about sort of copyright waivers in a second. But, you know, it says if you’re not comfortable with being on camera, you have to give us written notice of that.
Matthew Becker (16:33):
And sure enough, these members gave written notice of it. And so we always had to make sure that like, “Okay, we’re pulling out our camera, who’s in the background? We’re pulling out our camera, and we’re going to take a big group shot. Well, okay, hold on. We’ve got to get this person out of there.” But that’s the other potential that you run into with given people in the background. If you don’t have sort of some photo policy or video policy within your membership agreement that there’s a potential that this individual who doesn’t want to be on camera at all is now getting caught on camera. And so, go back, and we were talking about what really is the gym owner’s responsibility here if a fitfluencer happens to catch a member in the background? Well, if they catch the member in the background who said specifically, “I don’t want to be on camera,” you’re darn right, that’s now a gym owner’s responsibility, a gym owner issue.
Mike Warkentin (17:21):
So, there are gyms in the U.K., and I forget the names of the chains, but I’ll put a link in the show notes to an article I wrote about this. There are gyms that have completely outright banned cameras—just like no cameras—and that would include phones and recording devices, whatever you call it: not allowed in the gym anymore. That’s a really interesting one because filming stuff and taking pictures is a huge part of culture now. But that gym chain, and I think it’s two of them, have made that decision, and you could certainly make that decision. Is there a “Thunderdome” option, we’ll call it, where it’s like, “Anything goes. Sign the waiver; we’re all filming everything everywhere.” Does that work in any way?
Matthew Becker (17:52):
I think from a gym owner’s perspective, you could get away with something like that, or you could try to by putting it—I mean, it would be similar to, you know, like a CCTV provision that we would pump into a liability waiver that just has the member acknowledge that they could be on camera pretty much at any time.
Mike Warkentin (18:11):
We do that at the Two-Brain Summit, for example. We put up notices on the door as people walk in because we’re filming everything and just saying like, “We are filming everything,” and we have people sign and so forth. But like, we have to do that because there are cameras everywhere, and we can’t, like, not film this if you walk by to get a glass of water, you know?
Matthew Becker (18:27):
Right. And thinking about this really quickly, I think there’s two issues that you run into still is, you know, when I come to the summit, I’m entering into and acknowledging sort of this issue with privacy with Two-Brain Business. Okay. I’m saying, “Okay, cool. I understand that by walking in these doors, I am authorizing Two-Brain Business to use my likeness, and I’ll be on film, and I’ll be on camera and everything else.” I think it’s tough to then say, “And you will—you may also be filmed by somebody else.” I think the gym owner could potentially avoid some liability. You know, we talked earlier about if this gym member is in the background of a video, the gym owner is still going to get pulled into that lawsuit whether or not they have an argument that it’s not their responsibility.
Matthew Becker (19:16):
I think in the waiver, and I’d actually have to look at my waiver language to see if we have this baked in currently. Again, if you have cameras, you’re kind of automatically baked into this language because you have an audio visual disclosure within the waiver. But that would cover, you know, you may be on cameras from somebody else, but that doesn’t get you by the issue of either the individual being made fun of on camera. Okay because that’s going to be like, you know, what am I going to do? I’m going to put my waiver, “And you may be the victim of somebody else’s ridicule on camera.” Like, okay, probably not going to sign that.
Mike Warkentin (19:54):
I guess a member’s code sort of covers that, where it’s like, “Bad behavior gets you kicked out,” but that still doesn’t save the shame of the person who got caught in the video that caused the kicking out.
Matthew Becker (20:03):
Right? Right. Yeah. And, you know, we have code of conduct language that again, we pump into our membership contracts that we write for gym owners if they want it in there that says, you know, “Any kind of harassment or any kind of harassing language or conduct or anything like that authorizes the gym to immediate termination of the member.” And you still have this issue though, between the fitfluencer and the poor individual that got, you know. There’s still a battle there, and it’s still happening within the gym. So, there’s still a potential that the gym owner’s going to get pulled into this legally—at least cause a headache before the gym owner can present the waiver that says, “Look poor third party, you know, I told you by coming into my facility, you might be on somebody else’s camera. It’s not my fault you got caught in the background. Your issue is with the fitfluencer, not with me.” Okay. That’s still—you know, you’re getting pulled into a lawsuit; you’re still going to have to talk to an attorney. It’s still going to take months and months and months for this thing to resolve. Good to have that language in there, but it’s still not a fool—what did you call it? A thunder, a thunder—
Mike Warkentin (21:05):
A “Thunderdome.” You know, there are very few rules.
Matthew Becker (21:09):
Yeah, yeah. Yeah. Never think of anything in the law as a Thunderdome.
Mike Warkentin (21:16):
Right. We’re going to fight it out. Two go in, one comes out.
Matthew Becker (21:18):
Let’s go into scenario number three. Okay. Member is using the gym for their own self-promotion without giving the gym any benefit of this. And you kind of brought this up, Mike, about, you know, the gym’s branding. Well, you said the gym’s brandings end up being in the background of like the ridicule video or making fun of video, but—
Mike Warkentin (21:35):
But even in a positive one. Yeah.
Matthew Becker (21:36):
Yeah. You know, we talk to gym owners about, within your waiver, you need to have copyright waiver language that says that this member cannot then make any sort of claim as to any benefit that the gym receives from using their likeness within their advertising material. Okay. So, you know, especially when we’ve got fitfluencers coming in who say, like, “Well, I got 45,000 followers, and I get paid for my advertising, whatever, whatever.” Well, too bad, okay, by coming into my gym, I’m taking a picture or a video of you, as the gym owner. You can’t then make a claim to the benefit that I get from using your image, okay. If that’s a problem, we need to enter into a contract about that. Right. But what the gym owners often don’t think about is like the reverse of that. Okay? Because the fitfluencers coming into your gym and doing all these fitness things and using your equipment, using your space, putting it on video, they’re getting the benefit of the fact that they need your facility in order to build their following—in order to do whatever cool fitness-related thing that they’re doing.
Matthew Becker (22:44):
They’re now going out and sharing that with their hundred thousand followers. They’re getting more advertising dollars for that, you know, or you’ve got the person who’s coming into your facility and like holding up their protein and being like, “Try this protein powder.”
Mike Warkentin (22:58):
And it’s not the protein that you sell at the gym.
Matthew Becker (23:00):
Yeah. Right? And it’s in your gym. So, you know, just as we’re saying we don’t want gym members to be making a claim to the gym owner of any benefit that the gym owner gets from using their pictures and their likeness in the gym’s marketing, what about the fact that this gym member is now using the gym likeness and their video and using that as a benefit in their marketing? And so, that’s where, you know, we can run into this issue of why we might want like a blanket policy of like no filming, no footage whatsoever in the gym without the gym’s permission. Because especially as you grow your gym and your gym gets more and more of a popular brand—you know, you go into like CrossFit Mayhem, and you start using their branding in the background and be like, “Hey guys, check it out. I’m at CrossFit Mayhem. Buy this protein!”
Mike Warkentin (23:50):
And trying to catch Rich in the background by accident, which he would not be happy about. Right? I think they have very clear rules on that, but yeah, exactly what you’re saying. That’s a great example. It’s like I’m at Rich’s gym, and I’m selling some stuff with him in the background, and he doesn’t endorse that.
Matthew Becker (24:02):
Nope. Nope, he’s not going to go for that. And don’t think just because you’re a little gym you don’t have value, okay? You have all this value, otherwise this fitfluencer wouldn’t be in your gym. Okay? So, gym owners need to consider that also: If you’re going to allow photos and videos and stuff in your gym, do you want a right to any benefit that somebody gets—financial benefit that somebody uses your gym for? Okay. And of course, you know, there’s always the issue that this fit influencer is going to make fun of your gym in some way, shape or form.
Mike Warkentin (24:33):
One of the things that I was always worried about was someone filming something, and someone’s doing something really bad in the background. So, someone puts up a video of them, like doing a muscle-up. In the background, someone’s rounded back deadlifting, and a coach is running over to stop it, but I can’t get there in time. And it goes up. And people, instead of looking at the muscle up, say, “Look at the horrible form at this awful gym.”
Matthew Becker (24:51):
Yeah. I’ve had to have that discussion with my coaches at my gym before of, you know, there’s—this is kind of like a gym owner side, but there’s two potential issues there: One is the coach is now filming this guy over here doing this muscle-up and completely ignoring the guy rounding his back on his deadlift, okay? That’s problem number one. Okay? That’s an internal problem. Like, put the camera down as a coach, and coach the class. But two, you know, if you do want coaches taking videos of your clients during the workout, and you’re kind of okay with that, you do have to pay attention to what’s going on in the background. But I think that’s more just a discussion for Two-Brain and proper gym management and the image that you’re putting forth in your marketing. Yeah. I’ve always been very paranoid of that, and I’ve had to have discussions with my coaches of like, “Look, guys, you’ve got to look in the backgrounds of your videos before you just post these things.” Yeah. Okay. How about scenario number four? Let’s do it. You ready? This one’s a little bit more of a surprise.
Mike Warkentin (25:55):
Okay, I’m ready.
Matthew Becker (25:56):
The gym is using footage of employees or independent contractors for promotional materials or evaluations, alright? And this is one that I would say just about every gym overlooks. Because just because somebody’s an employee or a contractor at your gym does not mean they’re a member at your gym, which means they potentially never signed your liability waiver.
Mike Warkentin (26:20):
Isn’t that interesting?
Matthew Becker (26:21):
Which means they’ve never authorized you to take any video or footage of them to use their likeness, okay? So, you know, you walk in, and you want to take a picture of your employee demonstrating a deadlift or giving a tactile cue to a member to be like, “Look, our coaches care.” Okay? And you throw that up on your Instagram. You think, “Oh, well, they’re just my employee; they don’t mind if I put them on camera.” Well, maybe they do. Okay? And you technically need authorization to do that. Or you’re getting a big group photo, and you’ve got them bookended by an independent contractor or an employee, maybe they consent. But remember, consent for one photo is not universal consent, okay? Unless you’ve got universal consent in writing.
Matthew Becker (27:15):
So, let’s say this time, we’re after Murph, and I get the big group photo, and we’ve got it bookended with my staff, and we take a picture, and one of the staff members ends up thinking like, “Oh, I don’t like how I look in that. I don’t want to be in any more photos or videos.” Okay? But they don’t share that with you, and you’ve never received an authorization to take their pictures or use their videos, and you do it again. Now, you’re running into a potential issue, okay? And it could just be an awkward conversation issue, but you have to assume that the same authorizations that you need from your members, you need from your staff as well, okay? You can’t just make an assumption that by coming into your facility, they’re automatically consenting.
Mike Warkentin (27:56):
You know what’s funny, Matt, is I’ve actually taken corporate pictures, and I’ve actually like quickly talked to the organizer and said, “Is anyone here likely to be fired in the next two months? And if so, we’re going to place them on the left, and we’re going to crop that photo later.” And it happens. It’s kind of funny, but it’s, you know, it happens.
Matthew Becker (28:16):
Yeah. And, and that’s why, you know, first we need to put this very similar authorization language that we put into our waivers for our members to sign. We also need to be putting that into our employee contracts or independent contract agreements, okay? And, you know, you just raised the interesting point that we can’t just have this language boxed in by, “During your employment or during your term here as an independent contractor.” It needs to be there and expanding into the future unless the employee says something otherwise.
Mike Warkentin (28:47):
I believe I used something like, “In all known forms of media currently invented or to be invented throughout the known universe in perpetuity.” Right?
Matthew Becker (29:00):
And there you go. And you always put the onus on the other person to say, like, “You have to send me written consent or written notice that you want me to stop using your likeness.” Never do anything verbally. It always needs to be in writing, so you have proof of it. But, you know, that’s where some gym owners are starting to get issues because you’re right, Mike, as these, as we have little professional cinematographies in our pockets, and they’re coming out more and more, and they’re everywhere, and you’ve got cameras up here, and you’ve got them in the facility. Did your coach, did your staff consent to be on your CCTV system? You know, that’s a potential problem. And then, you know, there’s—hopefully your gym is doing quarterly evaluations of your coaches, and now you might be getting a video of your coach doing something wrong so that you can use it in the evaluation. Okay? That’s shaming, right? That’s the same thing we’re talking about, like filming somebody in the background. Now granted, we’re not sticking it up there in front of 45,000 viewers and making fun of them, but you know, you, you’re still potentially using this in a negative way, and that could offend somebody.
Mike Warkentin (30:08):
I’m going to ask you, take off your legal hat for a second and just be a gym owner for a second if you can. And the question here would be—yeah, I know I’m going to, this is a tough one for you because you are who you are. Try and separate for a second. And so, we understand that like the safest thing you could do is an airtight waiver that covers filming by the gym owner and the staff and covers filming of staff, filming of background, filming of people in the background. How do you enforce it when people pull out their phones? What do you do?
Matthew Becker (30:33):
Yeah. Yeah. I think that’s a culture issue of, you know, you have to get your entire staff on— This is much easier, let’s say, in a CrossFit gym than it is in like a 24/7 gym.
Mike Warkentin (30:46):
Yeah, those are tough.
Matthew Becker (30:48):
You know, in my gym we had—I literally went to Canva, and I printed out sort of like the rules of the gym, and I smacked it up on the wall above the dumbbells. And rule number one was no phones on the exercise floor during classes.
Mike Warkentin (31:02):
Could make a safety case for that too.
Matthew Becker (31:04):
Sure. And then I just had to go to my staff and say to them—and it took, you know, when we installed the rule, it took a little bit of time to get everybody on board of like, “You need to enforce this, you need to enforce this, you need to enforce this.” And, and even still recently, I had a conversation with my GM where—we did that, we did all that pre-COVID. Post-COVID, they came back, and I don’t know how it got relaxed, but the “no phones” policy got a little bit relaxed after COVID. And only recently did it start to become an issue and not so much because people were filming, but you know, from a gym owner’s perspective, they’re texting, and they’re not paying attention, and they’re checking their email. And so, it just becomes a distraction in general.
Matthew Becker (31:47):
You’re right, Mike, we can make a very easy safety argument here. And so, we’ve had to go back to the staff and say, “Guys, remember the gym rules are still up on the wall. I didn’t take them down. And rule number one is still ‘no phones on the exercise floor during class.’ We need to go back to enforcing this. Okay?” So very easily done when we’re running group classes, and you’ve got one individual standing up and then all the people in the back, right? All the people in class. Now we run into more of an issue here if we have—we’ll just start with open access; that’s sort of like the next tier up. So, we’ve got open access, so people can just come in and use the facility however they want, whenever they want. Maybe we restrict hours. So, we go from like 5 a.m. to 8 p.m. So, we have staffing. A little bit more difficult to do it because you’re not going to be like watching people walking out into the gym from the locker rooms to check whether or not they’ve got their phones on them.
Matthew Becker (32:44):
I think from there, it’s just a matter of kind of like forcing your staff to have that uncomfortable conversation. When somebody does this, you know, to walk up and say, “Back on that wall and your membership agreement, we say, ‘no phones.’ You confirmed no phones. Please put the phone away. Okay?” And we can also then have baked into like the authorizations or acknowledgements in our membership contract of like, what is the punishment? You know, if there’s no punishment, then this thing has no teeth. So, are we going to institute a fine? Are we going to potentially terminate membership? You know, you need to have some sort of punishment—or negative impact if you don’t like the word punishment—within your membership agreement that says—okay, so now you’ve got the teeth for the staff to go in and say, you know, when they do this, “Nope, sorry, you need to put your phone away. And please recall in your membership agreement that if we see it as being a continuing problem, we do reserve the right to terminate your membership. We’re just not going to allow that in here. Okay?”
Mike Warkentin (33:42):
So, put the gym owner hat back on. I’ve got to ask you this. So, I could see maybe 80% of gym owners who are listening to this saying, “I’m not going to stop people from filming in my gym.” Is your advice then, as a lawyer saying, “Okay, but that comes with risk.”
Matthew Becker (33:55):
Mm-hmm, yeah. Yeah, yeah. It’s, you know, and that’s nine times out of 10 what our conversations are with gym owners is we—Coop and I talked about that last week on Gym Owners United. I guess maybe, yeah, it was last week—with selling paid-in-full contracts. You know, as long as you’re following your state’s laws for paid-in-full contracts, you’re welcome to sell them; it’s still going to bring a headache, and you have to be ready for that potential headache. And if you know that and you acknowledge the potential headache, and you still think it’s best for your business, then by all means go do it. Okay?
Matthew Becker (34:27):
If you understand all of these four scenarios that we’ve laid out here as sort of like the most common issues that you’re going to run into with footage, and you’re okay with that because you don’t want your staff to have to enforce something like this; you don’t want to have to threaten to terminate somebody if they pull out a phone—that’s okay. We just have to know it so that we’re prepared, right? You know it so that you—you essentially as the gym owner are acknowledging, I guess with me, but I can’t do anything about it—but you’re acknowledging that, okay, I know the potential risks here, and I still think it’s better for my business to allow the fitfluencers in. Great. But you know you’re making sort of like an informed decision here. Now we run into 24-hour—let’s sort of go like the worst, you know, the 24/7 access. Now you’ve got somebody at two o’clock in the morning, I mean, hopefully at two o’clock in the morning, there’s not going to be a lot of people in the background, okay?
Matthew Becker (35:26):
So maybe that’s not a huge concern, but you likely don’t have staffed hours at two o’clock in the morning, so there’s not going to be anybody there to enforce this. But let’s say you’re a gym owner who is now listening to this and saying, “Nope, we are done. There are no phones permitted in the gym now whatsoever. I’m going to reinstate this coming up on January 1.” So, what do we do about it? Well, similarly again—and the membership agreement is really the only sort of like the only place that we can get signed off authorization or acknowledgement from the gym member about this. And so oftentimes, we’ll treat this like tailgating. So if you’re not familiar, in a 24/7 access gym, you run the issue of tailgating, which basically means I use my key fob to open up the door, and I hurry up and get like five of my friends to run in with me too, right?
Matthew Becker (36:12):
We’re there at two o’clock in the morning, gym’s never going to know, whatever. They’re on camera, okay? If you’re running a 24/7 access gym without cameras, you’re just—let’s have a conversation about something different—but they’re on camera. So, we put in the membership agreement that says, “This agreement applies only to you and gives you and only you access to the gym. And if we find out that you’re letting other people in—” you know, whatever the gym owner wants to do. Typically there, the gym owner’s fine with saying we’re going to terminate them for the lifetime of the gym. Okay? Or, you know, violation one is a hundred-dollar fine; violation two is you’re terminated. We would just put something like that in the agreement. You know, that’s about the best way we can control the 24/7 access gyms is to say, now if you review the corner camera footage the next day, and you see this guy, you know, just all over getting videos and everything else, well, they acknowledged in the membership agreement that there’s a potential punishment for that.
Matthew Becker (37:08):
And that’s now just the uncomfortable conversation we have to have with the member. But from a gym owner’s perspective, taking off that legal hat again, it’s the culture that you are creating at the gym. And I think that’s what—I don’t dare speak for Two-Brain as I’m not a Two-Brain mentor—but you know, that’s always been my understanding of like, anytime we’re trying to enforce these sort of, maybe at this point, sort of like fringe policies and procedures, it’s all in the culture. It’s the culture that you create; it’s the culture that you as the owner enforce and that you put forth through your staff that your gym members with maybe a little bit of encouragement are eventually going to follow, and they’re not going to have any issues.
Mike Warkentin (37:50):
Okay? So, to wrap this, I want to give people some actionable stuff. So let me lay out a couple of things from the legal side of it. If you wanted to be as insulated as possible, it would be a great idea to talk to matt@gymlawyers.com and get media-related language in your employment and member contracts. Is that correct, Matt?
Matthew Becker (38:09):
And waivers.
Mike Warkentin (38:10):
And waivers. There you go. Okay. So that’s the big one. If that’s where you want to go—to the nth degree—that’s what you do. Now, I’ll give you Matt—and this is where I want you to be a gym owner with me, but please advise because I want to talk about risk mitigation strategies, and these are just kind of off the top of my head as a gym owner, thinking as a gym owner, tell me if the stuff like this works. You could put up, you got a code of conduct, and in that code of conduct, you just enforce good behavior and honorable conduct. So that gives you grounds if someone is shaming in any way, whether it’s on camera or not, you’ve got some backup there. And when people come in, they at least know I’m expected to be a decent human being.
Mike Warkentin (38:46):
That should eliminate some problems right off the bat. Another thing that you could do is you could certainly organize group photos where people can pull out their phone, say at the end of class, in a safe manner and say, “Hey, we’re going to do a group photo. Anyone who doesn’t want to be in it, hang out over there, and we’re going to do a shot.” You could do something like that, I imagine, just to get some people who are uncomfortable out of the way. I think another thing that you could do is make sure that if someone is filming, know your membership. If there are people who are definitely not going to be comfortable, make some judgment calls, right? If you’ve got like a deep cover CIA operative in the background, maybe like, you know, bring that up a little, you know, just, “Maybe, maybe Phil needs to not be in this shot” kind of thing.
Mike Warkentin (39:24):
You get what I’m saying? You can just find, you know, people who don’t want to be in this stuff, right? So, if someone mentioned something once, be courteous. I think another thing that you might do in a gym is even have a selfie area where you’ve got like a really cool, well-lit area where people gravitate toward it for the best visuals. And that keeps people out of the background, right? This is where we want selfies to happen. That’s one way to do it. Like that, you could also do like a video area where it’s like, “No cameras beyond this point.” You could put a tripod here and here, and maybe they’re mounted to the floor or something, and it films that way only. And there’s no background stuff. It’s just a wall and whatever stuff. Again, this doesn’t work super well in a giant global gym where the leg press machine is where the leg press machine is, and the water fountain is behind it. But in a CrossFit gym or in a functional fitness, it could work like that where it’s like, “That area over there is where you film. And if you don’t want to be filmed, don’t go there.” Now again, this isn’t legal advice, right? This is not legal advice saying that this is insulating, but Matt, do you see those at least as reasonable risk mitigation strategies?
Matthew Becker (40:21):
Definitely. Yeah. Yeah. And we have done things like that too where, you know—my gym happens to be set up because it’s a CrossFit gym where it’s like everybody works out in like a line essentially because the pull up rig right is against the wall. And so, “We’ll say, look, if you want to be on camera, and you want us to film your workout, we’re going to put you all the way down there at the end, and that’s going to be your spot.” So, then the coach essentially just gets the bare wall behind them. Another thing that we’ve done is, you know, we have said things like, “Well, if you want to get a particular movement on camera, we’re going to do that before or after the workout. And that way we can kind of clear everybody out, and we don’t have to worry about people being on camera if they don’t want to be on camera.”
Matthew Becker (41:01):
“I’m just going to throw—you know, you go over to the pull up rig; you do some toes to bar. I’m going to get that on film.” And then, you know what, maybe we do that during the five minutes between the warmup and “3, 2, 1 Go” while everybody’s got their bathroom breaks, and somebody’s like, “Can you get some toes to bar on camera?” “Yeah, we can.” Okay. So, you know, those are some different strategies, but I think you’ve laid out good ones. I actually—I never really thought about the selfie area of the gym. I really like that idea.
Mike Warkentin (41:28):
I know some gyms are doing it with lighting where they’re putting in like cool LED lighting in the background, so it looks cool, and you have the right backgrounds. You could probably just like funnel people into certain areas by doing that and having a really good background that you want to show off. I thought of a couple other things where you could even, in some ways you could use this almost as a personal training thing where it’s like, “Hey, if you want video analysis and you want specific videos and all this to film workouts, we can set up personal sessions where I can help make that happen for you.” And then you can control the background. And then another thing that you could even do, you know, with influencers is: Could you charge them like a rental fee? A facility rental fee and say, “Hey, if you want to film here, you can now rent my facility for three hours at this rate, and it’ll be free of people. You have the world as your oyster.” Would that work?
Matthew Becker (42:12):
I think you should start to be charged for these ideas, Michael.
Mike Warkentin (42:15):
Well, there you go. That’s what we’re doing is give—I’m thinking like Cooper: How can I make this work?
Matthew Becker (42:20):
Yeah. That would be a pretty easy agreement. That’d be like a regular facility sublease that we would do that, you know, that fitfluencer sees value in, and you want to charge them 300 bucks a month to be able to come in, and you’ll create a little space for them, so that they can do their videos. I got a little corner in the back of my gym that’s got its own pull up rig and will fit a little bit of equipment. Yeah, I could promote that quite well in my gym. Yeah. I like that idea.
Mike Warkentin (42:46):
Cross-promotional ideas, right? You could find a way—you could get a fitfluencer to promote your gym as part of some sort of a deal that works for both parties. We’ll wrap it up here, but the idea is: Cover your bases in some way. Use some risk mitigation strategies at the very highest level. Use a lawyer, and Matt, where can people get ahold of you if they want to talk about this?
Matthew Becker (43:04):
Easiest way is just go to gymlawyers.com, and there’s calls to action all over the website. My email is on the contact page; my cell phone is on the contact page. That’s really the easiest way to go about it. If you fill out one of the calls to action, you’ll get right to my scheduling calendar. You can schedule a 45-minute free intro. We can talk all about this.
Mike Warkentin (43:26):
Or any other legal problem you have.
Matthew Becker (43:28):
Yeah, right. Anything at all. It’s all there. And, you know, I’m always able to answer questions or willing to, but, you know, I just want to leave the gym owners with this Mike, and we’ve kind of bounced around this the entire time. And that is just the simple fact of this stuff is going to come at gym owners. You know, I’ve been, for whatever reason, remembering back to when I started my gym over 10 years ago and thinking back then it was a hobby. And then all these, you know, Two-Brain companies come out, and they teach us that this stuff exists like a real business. And you can look over that time and see these different issues that gym owners have had to deal with like real businesses since, you know, about like 2010 up into today. So, you know, I often try to hammer it home that just because you’re a gym owner doesn’t mean you don’t deal with these like other businesses do. They’re coming, and it’s best to get out in front of them because the gym industry—the micro gyms are real businesses.
Mike Warkentin (44:25):
I won’t say anything to that. That is exactly how you should do it. Run your business like it’s a business. And if you need help with that, Two-Brain Business can help you. There you go. Matthew Becker, gymlawyers.com. Head over there, see him, talk to him if you need some assistance. Thanks so much Matthew.
Matthew Becker (44:40):
Always a pleasure, Mike.
Mike Warkentin (44:42):
Thanks for listening to “Run a Profitable Gym.” On your way out, please hit “Subscribe” wherever you’re watching or listening, so you do not miss a show. Now here’s Chris Cooper with your final message.
Chris Cooper (44:51):
Hey, it’s Two-Brain founder, Chris Cooper, with a quick note. We created the Gym Owners United Facebook group to help you run a profitable gym. Thousands of gym owners, just like you have already joined. In the group, we share sound advice about the business of fitness every day. I answer questions, I run free webinars and I give away all kinds of great resources to help you grow your gym. I’d love to have you in that group. It’s Gym Owners United on Facebook, or go to gymownersunited.com to join. Do it today.
