I never thought I'd say it, but I absolutely love Life Time Fitness (On Twitter: @lifetimefitness). When people ask me what the newly privately-held company (formerly NYSE: LTM) is all about, I say the same thing: "Trying to describe Life Time to someone who has gone to a gym before is like trying to describe a Vegas hotel to someone who has been to hotel before." Only I doubt the staff of Venetian would remember my name the way the entire staff at Life Time Long Island seems to each time I arrive. Life Time is a model of customer service. And the setup they have for the kids is pretty incredible: a whole long row of computers, a tree house, an indoor basketball court, and a staff of well-trained child care professionals. Life Time Fitness doubles as a wonderful daycare facility, too, which is the real reason I joined. So, of course, I wanted to enroll my kids for a few weeks in their day camp. But I am not sure if I will. Because of one contract clause that makes my blood boil.
Don't get me wrong; I believe in contracts. Of course I do; I draft them for a living. I believe in protecting people and companies through well-designed and fair agreements. And, the "Life Time Kids' New York Camp Participation Agreement" seemed to be one of those... until the last clause:
RELEASE OF IMAGE AND LIKENESS
The undersigned hereby irrevocably consents to and grants Life Time the exclusive and unlimited right to use and reproduce any and all photographs, slides, moving pictures, audio and visual recordings or testimonial accounts taken by Life Time that contain my Minor Participant's name, image, voice, likeness or account, for any lawful purpose whatsoever and using any means available including but not limited to any of Life Time' [sic] records, corporate public relations or marketing communication material, videos or online material, social media campaigns, either with or without the Participant's name or photo accompanying such quotation. I waive the right to inspect, approve or edit any such use or reproduction, and Life Time may make any and all changes, modifications, rearrangement, additions or deletions in its use reproductions without any approval.
That there is what is known as a sucker punch. And I doubt many parents even noticed it. Because parents, like virtually all Americans, have contract fatigue. There's a contract for everything, because everyone's (rightfully) worried about getting sued. And I would venture to guess that most Americans have given up reading the fine print, which goes on for pages now. Most Americans, even with matters affecting health and security, click on a web site's "Click Here" button without checking out the Terms and Conditions link, thus creating an enforceable contract, because they just don't have time anymore! Enforceable contracts are everywhere, and, even if there are plain English requirements, a lay person knows that he is not really going to know how to protect himself, and surely isn't going to retain an attorney to go over a personal agreement. A hard-working citizenry has collectively cried, "Uncle." Bullied into submission, a lay person closes her eyes and jumps into an agreement that may bite her years down the line.
The "Release of Image and Likeness" clause seems like the most innocuous of the clauses in the Life Time contract. That is why it is the most insidious. I know that similar clauses appear in adhesion contracts from nursery schools and day care centers all over the country. But very few have Life Time's national reach. And I understand that my kids and I are taking a risk when they climb a rock wall, so I will happily sign a limited liability waiver for that. I accept the potential risk-to-reward ratio. But I don't want my kids' smiling faces on a billboard in Alabama. That should be my right. They're little kids! They're not professional models.
When I told the college-age customer service representative behind the Activity Center Desk that I wanted to cross out this one clause, she told me my kids could not participate in camp. And it's not her fault. I doubt that she (an excellent employee otherwise, by the way), or the wonderful sales representatives, or even the site manager had ever read the clause. She is only following orders, likely from lawyers somewhere in Minnesota!
But this is an abuse of legal drafting. It's not designed to protect, but to pummel. We have seen the dangers of the unrestrained use of likeness in cases like Garcia v. Google. We're losing our belief that we own what's ours when a rich provocateur (artist?) such as Richard Prince has the financial wherewithal to retain high-priced attorneys after ripping off talented Instagram posters and a Rastafarian photographer. Everyday people feel (wrongly) that the lawyers (and justice) are only for the wealthy, so they just have to suck it up.
Some parents still want to protect the privacy of their kids, as difficult as that is getting, when photographers with long lenses can apparently photograph unaware unclothed minors in their homes and get away with it. But even for those who believe the law is only economics should be outraged. New York, which has no common law right of publicity, but has glaring holes in its rights of privacy statutes, is home to the biggest advertising center in the world. When I was a film and video producer, I hired an excellent casting director to find child actors who were represented by agents and managers. Why? Because, even if kids are being forced into labor by parents who don't worry about putting their kids in the public spotlight, or even possibly the erosion of privacy in America, they know and we know they are properly getting paid for it.
There's a reason, for instance, that virtually all unpaid internships are illegal in New York when there is a lack of lawful quid pro quo. Money makes a difference to a lot of people who don't have as much of it as celebrities and large companies. So does fairness. Shouldn't a huge national company such as Life Time have to play by the same rules as everyone else?
Update (6/3/15): Kimberly Ash, the Life Time Kids Manager at Life Time Syosset was so kind and promised me that none of the kids' names or likenesses would be used in a promotion, advertisement, or video. She told me that, as a mom, she understood my concerns and would make sure that not even cell phone photos would be taken. She also advised that I try to speak to Life Time Corporate in Minnesota and let them know my concerns with that clause.