In light of the current Covid-19 pandemic and the physical distance it puts between yoga businesses, organizations, teachers, and students, many in the yoga industry are working rapidly and efficiently to move their offerings online. However, as a collective of individuals who work with matters of the spirit, they are often not particularly adept with the business and legal issues that arise with online work. In this article, we’d like to offer some guidance on the creation of online teaching agreements.
Jesal Parikh has a Bachelor’s degree in Business Management, has been teaching yoga for the last 10 years, and currently offers programming through Yogawalla NYC (her own brand). She is also co-creator of the Yoga is Dead podcast, in which she discusses the intersection of yoga and business (and the legal issues that can arise thereby). Nick Demos has taught yoga, pranayama, and meditation for over a decade, and is also a Tony Award-winning producer, filmmaker, and writer who has worked in entertainment for nearly 30 years. For the last two years, he has offered his work in the online space as both a meditation teacher and soul-centered business coach.
We do need to clarify that neither of us is a lawyer. The information provided in this article does not, and is not intended to, constitute legal advice. All information, content, and materials in this article are based on our personal experience and are for general informational purposes only. What we offer here may not constitute the most up-to-date legal considerations or other business information.
We’ll begin by saying that there seems to be a stigma around the topic of contracts for being “too business-like” for the yoga industry. But we are an industry. So we believe it’s beneficial for all who are part of it to educate themselves about contracts and other aspects of the business. This will enable them to better understand the perspective of each participant, and to approach these topics with compassion and open-mindedness rather than a fear- and scarcity-based mindset. Here, we focus primarily on the needs of yoga teachers who are signing on to teach online. In terms of cultivating compassion and understanding, we feel all yoga business owners could equally benefit from our experience.
We know that many of you are figuring out right now how to put content online, and you are being offered opportunities to partner with businesses (such as the studios where you teach) as well as online platforms. We aim to offer you insight based not only on our personal backgrounds, but also on our shared history.
We met in 2013, when Nick was teaching in a 300-hour training program in which Jesal was a student. Fast-forward a few years, when Jesal had joined the staff of that training program, and both of us were offered a contract to teach online. We were to be filmed live, while each of us presented in the in-person teacher training program.
Here, we will review portions of that agreement as a case study. But first, an important reminder:
Everything Is Negotiable
Before diving into the specifics of the contract we were offered, we want to remind you that all parts of a contract are negotiable.
Negotiation is typical and prudent. Contracts should be in alignment with your core values and should ideally strike a balance between the needs of all parties involved. To achieve this result might require a significant amount of back and forth. A thorough negotiation up front can save a yoga business, online platform, yoga teacher, and anyone else involved from potential legal fees down the line.
Contracts should be in alignment with your core values and should ideally strike a balance between the needs of all parties involved.
The Case Study
In each of the clauses below, you’ll see reference to “Agreement,” “Producer,” and “Product.” The “Agreement” is the contract. “Producer” refers to the teacher training program whose staff we were part of, although it could more generally apply to a yoga studio, business, or platform for which you are filming online content. The “Product” is the actual recording.
Video vs. Copyright Ownership
“I grant Producer and its designees the right to use the Product in any format, now known or later developed. I grant, without limitation, the right to edit, mix, or duplicate and use or re-use Product in whole or in parts as Producer may elect. Producer or its designees have complete ownership of the Product, including copyright interests.”
Clause #1 contains boilerplate language that can be found in many contracts. Ordinarily, this clause represents the starting point for the conversation and will often look very different by the time all parties are ready to sign on the dotted line.
As is, the clause lays out several elements that could conflict with the interests of the talent/teacher. First is the right granted to designees. This could present a conflict if the Producer (aka the yoga business or platform) decided to grant use to a third party that is not in alignment with the teacher’s values. According to the wording in this clause, the Producer would not need to take any additional steps to gain consent from or, indeed, even inform the teacher/talent as this right is granted for all future use without limitation.
For example, if you’re a body positive yoga instructor who has filmed classes on video (“Product”) for an online platform (“Producer”), and that platform is acquired by a clothing company (“Designee”) you feel has perpetuated body shame, this clause wouldn’t grant you a say in whether or how the clothing company can use, market, or sell your online video. In this scenario, the clothing company could use the video at any point in time, in any way they wish, and as many times as they deem useful.
Secondly, this clause allows the Producer to mix, edit, and use the filmed content without approval from the talent/teacher. While most yoga platforms and businesses may have good intentions, this part of the clause offers an important opportunity for the talent/teacher to create some overall clarity.
For example, would it be okay with you if the Producer, who started out as a yoga studio, decided to pivot their business toward producing spoof videos, and then used the content you filmed to disparage you or your brand? What if the Producer decided to make some extra money by selling your filmed content to political groups for use in campaign advertisements? While these may seem far-fetched, the point remains that creating clarity up front around this part of the clause can save us from disagreements and potential legal fees in the future.
Finally, and most importantly, this clause grants ownership of both the video and the copyright to the content of the class. While according to U.S. law, yoga, its teachings, and specific sequences cannot be copyrighted, the copyright could potentially apply to things like the curriculum and your contributions to the written manual. In our case, we had each rewritten the portions of the manual that we were teaching, and this clause was asking us to hand over the copyright to our rewrites. If we had agreed to this clause as it was presented, we would not have been able to teach our curriculum in other training programs or our own individual businesses without significant modifications.
Producer has no financial commitment or obligations to me as a result of Agreement.
This clause was by far the most egregiously one-sided (and even predatory) part of what we were presented. Anyone who has created content for online viewing should be fairly compensated. In this instance, we were only compensated for our in-person, hourly rate for teaching the training, with no additional remuneration given as part of filming the online content. Had we accepted clause #1 and clause #2 as presented, the owner of the training program would have had the legal option to show our video content thereafter, leaving us without compensation, and cutting us off from any future income associated with having taught in the program.
To quote Media and Business Attorney Gordon Firemark: “If you are creating something for one time, you should be paid accordingly, but if you are creating something that will be used more than once you must negotiate the terms of the deal.”
Commonly, a standard fee and an agreement for ongoing royalties or a percentage of the profits would be offered for content that is recorded for multiple viewings online. This standard fee plus percentage is known in the entertainment industry as a “penny rate”—not that you are paid an actual penny, but that you receive money per session or usage.
I have read, understand, and agree to all of the above and that the rights granted Producer herein are perpetual and worldwide.
In clause #3, the key words are “perpetual and worldwide.” This phrase offers no limitation on future use or geographic boundaries of the online content. Most importantly, this can affect the revenue potential for the talent/teacher. But it can also affect the ability to update other parts of the agreement.
For example, if the contract contained a time limitation of three years, the talent/teacher could renegotiate their terms of payment and/or other parts of the agreement (such as what kind of designees have rights to the content and how it is edited, mixed, or reused) based on new circumstances after the three years have been completed.
Imagine that you had 1,000 Instagram followers before signing the contract but that you were able to grow your audience to over 500,000 in those three years. If the contract contains a time limitation, you could offer your new audience size as leverage for a new deal when the original agreement expires.
Regarding the geography provision, the talent/teacher could work out separate terms and compensation by region instead of agreeing to a singular fee or granting the same rights worldwide. These regions could be global (North America, Asia, South America, etc.), regional (Canada, U.S., Mexico), or within a given country (Southern U.S., Northeast U.S., West Coast U.S., etc.), or even local (Manhattan, Bronx, Brooklyn, etc.).
When entering into a contract negotiation, it can be useful to understand your starting position based on your status as either an independent contractor or an employee. Most of what we’ve laid out in this article takes into consideration that yoga teachers primarily operate as independent contractors.
If you are an independent contractor, you would retain ownership over materials you’ve created (such as a portion of a manual) unless you agree to sign over these rights or if you have been specially commissioned to create that material. However, it’s important to note that the default ownership may look different if you are a W-2 employee for a business. If that is the case, the business would retain default ownership over the materials you create for that business if it falls within the scope of your employment.
While it’s always advisable to have an agreement in place before creating content for another entity, it can be useful to have an understanding of default ownership. In the case where you are a W-2 employee, a “rider” or addendum could be added to your current employment contract if your employer agrees. If you’ve already created online content for another entity without an agreement in place, an agreement can always be added after the fact, though you may find negotiation more challenging in that situation.
It bears repeating that we, the authors, are not legal professionals. Each situation is unique and may therefore require further explanation from a legal professional—preferably one who represents your interests.
Ultimately, the owner of the training program who presented us with this contract was unwilling to negotiate any of the terms, including compensation, and made it clear that we were to sign the agreement as presented or we would no longer be part of the training program. We each independently made the decision to walk away from the program and move on to projects more aligned with our interests. The training program lost two valuable and knowledgeable staff members. In Nick’s case, this was a long-standing relationship of over ten years.
It is unfortunately sometimes the case that all parties may not be able to reach an equitable agreement. In such instances, it’s important to know your value and to stand your ground. As Media and Business Attorney Gordon Firemark has advised: “Read everything carefully. Do not grant rights. A one-time fee does not make sense. Make sure the terms and the scope are appropriate for what you are doing.”
We would simply add: Do not be afraid to walk away in order to seek out an opportunity that is more in line with your interests or to create your own opportunity.
For more on this topic, please check out the recording of the live discussion between Nick Demos and Jesal Parikh titled “A Conversation on Online Teaching Contracts.”