Do You Know What Is In the Climbing Gym Liability Waivers We Sign?
Imagine driving down a highway, with the windows down and music blasting through your speakers, at the end of a long workday. Then, a familiar scene on a distant billboard catches your attention. As you drive closer to the image, your curiosity changes to profound confusion; the billboard is a huge picture of you, rock climbing at a local climbing gym.
Despite being from a demographic that represents around 1% of the climbing community¹, and only visiting the gym 1-2 times, you are prominently featured in the commercial advertisement. Furthermore, after contacting the business to express concern about the use of your image, they cite the liability waiver that you signed upon entering their facility. This scenario might sound far-fetched; however, I know several climbers that have been in similar positions.
As the founder of Climbing for Change, a nonprofit organization that works to increase diversity in rock-climbing and outdoor adventure sports, we have worked with individuals and businesses to navigate complex issues of this nature. These conversations are always delicate: the interest of gym patrons should be protected and respected, and it is important for gym owners to understand the sensitivity of this issue to avoid negative backlash. While liability waivers might legally grant the unlimited use of photos, this right does not protect businesses from the court of public opinion. A court with few rules or limits, which is fueled by the relentless reach of social media.
A quick review of the emailed copy of the last liability waiver that you signed will reveal that most climbing gym waivers have a photo use statement. This statement authorizes the gym to take photos and/or videos of you (or the minor child that you represent) and use the media for marketing or other promotional purposes – without compensation. These waivers do not provide an option for “opting out” of some waiver terms.
Many of the recent photo use issues that I have seen have disproportionately impacted individuals from underrepresented communities. This is largely due to the low representation of minorities in the climbing community², and the current social justice movement that has encouraged less diverse industries to incorporate diversity and equity considerations into their strategic planning. Inclusive marketing ads are a positive yet evolving business trend which contributes to this goal. However, using the image of a random customer as the central focus in a commercial ad, without their consent or fair compensation, is not a winning strategy. If a business wants to portray a diverse environment, they should have diversity initiatives and participants that are excited to be associated with their company. Most customers are reasonable; we know that small businesses have limited marketing budgets and we want to support businesses that we enjoy. Moreover, companies should want a genuine bond with individuals that become associated with their brand.
Limited use of consumer photos seems reasonable. When you venture into a public space, it should not be surprising to see your face in a sea of photos published on a company’s social media page, internal posters, or communications within an organization. In general, it is acceptable practice for gyms to release highlight reels from competitions, to post photos/videos of the day (of gym patrons) on social media and featuring outreach program participants on online platforms. Businesses should be able to share fun media that captures their community atmosphere. However, these photo use examples are significantly different from featuring individual patrons in paid marketing campaigns, where there is an implied endorsement of a business entity.
A decade ago, photo use clauses in liability waivers might have been harmless. However, in today's social media world, your image is one of your most significant assets. Companies pay athletes and influencers considerably to endorse their product and for the right to use their image. Business Insider’s report that social media influencer’s can make up to $700,000 annually in brand deals. Thus, the extensive use of one’s image, especially with an implied endorsement of a product or service, is a valuable commodity that individuals should be able to maintain and regulate.
There is an argument to be made on both sides: from a consumer’s perspective, they deserve to have control of their image; however, from the business’ perspective the gym is a public space, and they should be able to promote their community environment. From my experience being a mediator in these conversations, there is a respectful balance where all interests can be protected, with adequate communication. This communication should occur before ongoing commercial ads are purchased, featuring individual customers.
When it comes to external commercial ads, gym owners should use paid models or subjects that are genuinely connected to their gym, such as members, staff, participants in outreach programs, etc. Affiliated members of your facility have close ties with their local climbing community and being featured in business ads would likely be received well. Ads that feature a montage of gym patrons, actively engaging at the gym, rarely receive negative backlash. However, if there is a limited number of athletes featured in ad, like those where models are often used, you should communicate with the individuals prior to releasing the media. This is especially important if the ad highlights the individual to the extent that they appear to be endorsing the gym or if the featured individual is loosely affiliated with the gym. In most cases, members of the community are excited to participate in media campaigns; however, communication is undoubtedly easier before the public release of an ad campaign. Some surprises are not worth the unintended consequences.
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2. https://www.businessinsider.com/how-much-money-instagram-influencers-earn-examples-2021-6
3. https://aac-publications.s3.amazonaws.com/articles/State_of_Climbing_Report_2019_Web.pdf