Many fitness professionals are using exercise videos to increase exposure to potential clients: driving additional traffic to their website, demonstrating expertise and instructional style, providing useful information to potential clients. This article will explore some of the legal considerations you might want to consider when including exercise videos on your website.
The copyright vests in the producer of the exercise video; this means that if you hire someone to make a video recording you, be sure that there is a written contract that transfers the copyright (through “work for hire”) to you, or in the least provides a commercial license for you to use the video on your website to promote and endorse you and your business. Be aware that you will likely pay an additional licensing fee to use the video in a commercial manner.
You can of course attempt to make the video independently, but that doesn’t mean you can record the exercise video wherever you like. You will likely need to obtain permission to film a video in a private building, including a gym. So too, filming might require a permit in public parks or around significant landmarks. Be sure to do your research in advance to avoid issues before they occur.
If you are looking to use clients in your videos, there are some additional issues that may arise. Be aware that even if took the video images, you still need to secure permission to share images that infer an endorsement of a service, product, or business – it is important to have such granting of permission in writing. An attorney can help you develop a proforma agreement for your business. Failure to obtain such permissions can result in leaving yourself open to claims of damages in addition to copyright infringement.
Be especially careful if there is footage or images that show a client in a negative light – consider how you might avoid this – and consider adding a watermark to your video to dissuade people from taking screenshots or otherwise stealing your video. As an aside, if you are looking to use before and after images in your videos, be sure to read our Article about using before and after images of your fitness clients for an in depth discussion.
If you are thinking about adding music to your exercise video (even in the background) be mindful that any performance of music in this context requires the appropriate licensing. There are websites (similar to stock photo websites) that offer music with reasonable licensing fees for using in an exercise video. What you should not do is pick your favorite workout song and use that (at least not without the appropriate license)!
By recording an exercise routine in video or multimedia format, you are ensuring that your own exercise routines can benefit from copyright protection (under Title 17 U.S.C.) and can be registered with the U.S. Copyright Office (which allows for additional enforcement rights).
What this also means is that you cannot just record a video of you doing someone else’s copyright exercise routine and claim it as your own. Ensure that any exercise videos are your own work, including the commentary and instructions you use.
The Fair use exception (under s107 of Copyright Act) does not apply to videos made for a commercial purpose, whether because your clients must pay or subscribe to see those videos or because you are utilising these videos as advertisements for your fitness business.
We’ve talked about important disclaimers for your fitness website in another article, which you might want to refer to when considering uploading fitness videos to your website.
If you have exercise videos on your website, you may want to add a disclosure like the following address liability for injury:
As with all exercise programs, when using our exercise videos, you need to use common sense. To reduce and avoid injury, you will want to check with your doctor before beginning any fitness program. By performing any fitness exercises, you are performing them at your own risk. XXXX.com will not be responsible or liable for any injury or harm you sustain as a result of our fitness program, DVD, online fitness videos, or information shared on our website. This includes emails, videos and text. Thanks for your understanding.
If you do use clients in your videos and they have explicitly given you permission to use their image in endorsing your services (or goods), you may also need to add a disclaimer related to those testimonials and endorsements as part of your video and on your website. The Federal Trade Commission (FTC) has guidelines on using endorsements and testimonials in advertising.
Assuming that you are only using footage and testimonials of real clients:
The fitness testimonials and weight loss results presented in this video apply only to the individuals depicted and should not be considered typical. Results are not guaranteed. Each testimonial in this video is from a real customer who used our programs and/or services. Before and after photos shown were not altered or retouched. Results achieved – including, but not limited to weight, body fat percentage, and measurements — were self-reported by the client and therefore cannot be confirmed. Errors could have been made in reported weight and measurements. You should assume that featured results are not typical. No one was paid for a testimonial or endorsement.
Whatever disclaimers you use, either on your website or in your videos, should reflect the needs of your business and the state in which you are located. Having these reviewed by an attorney may be beneficial, especially if you are planning to make a series of videos.