PetaPixel

The Color Run Sues Photog for Demanding Payment for Widely Distributed Photo

Update: The Color Run has responded to our request for comment. Read their side of the story at the bottom.

Update #2: It seems The Color Run and Maxwell Jackson have reached an agreement. You can read the full update at the bottom.


colorrun

A young Florida college student photographer is receiving an outpouring of support from the photo community over what may turn out to be one of the more ridiculous copyright lawsuits we’ve ever run across — a suit in which the Color Run (you know, “The Best, the Biggest…The Happiest 5K on the Planet”) is allegedly suing HIM over a photo of his that they used.

21-year-old Maxwell Jackson first heard from The Color Run after he photographed one of the events at his school in Miami. They wanted to share his image from Miami on their Facebook page, and being new and naive he allowed it.

Fast-forward to July 2013 when Jackson walks into a Sports Authority in Pennsylvania, only to see his photo (sans credit, of course) displayed prominently on advertisements throughout the store. It turns out that when The Color Run originally got in touch to seek permission to use the photo, they lied about a few things and left some other things out.

colorrun5

For one, Jackson was promised to be given proper credit. For another (as you can see from the message above) no mention was made in the original correspondence of the photo being used in an INTERNATIONAL advertising campaign.

Jackson claims that his photo has been used without proper permission, compensation or credit on several international websites (including Color Run UK), in the U.S. News, Baltimore Sun Times, and by companies like Coca-Cola.

When he got in touch with Color Run Owner and Founder Travis Lyman Snyder to ask for proper compensation, the company allegedly replied by saying that they would “rather spend $500,000 on lawyers than be extorted.” And that’s exactly what The Color Run is doing: they filed a frivolous trademark infringement lawsuit against Jackson in what he calls and attempt to “sue him into submission.” (full filing available here)

Fortunately, Jackson has applied and been granted pro-bono council from the state of Utah — the state where The Color Run is based and the lawsuit filed — but he is still short tens of thousands of dollars in other fees that will be necessary in order to defend his rights. And since he’s a self-proclaimed broke college student, he’s started a GoFundMe campaign in hopes of raising the necessary funds.

colorrun2

Obviously we only have one side of this story. To that end, we’ve reached out to The Color Run’s press department for comment and will update this post just as soon as they get back to us. But while it’s very possible The Color Run has a legitimate reason to be upset with Jackson, our experience with these sorts of stories has us leaning the other way.

To find out more about the suit or show your support (either monetary or otherwise) for Jackson, head over to his GoFundMe campaign by clicking here. And, of course, feel free to let us know what you think in the comments down below.


Update: Jackson reached out to Fstoppers directly to share some more details about exactly why he is getting sued. Here’s the relevant information, reprinted with permission from FS:

About 5 months after I shot the race I was contacted by someone I knew that worked with a company that sets up, breaks down and staffs Color Runs. They asked if I wanted to work color runs and it sounded like fun and good money so I said yes. While working for Silverback (company I worked with) I made my fb employment status that I worked at Silverback and The Color Run. That is their filing on the case but they have also argued that because their trademark “Color Run” is in my photos they are entitled to them.


Update 2: The Color Run has responded to our request for comment with a formal letter from Color Run Founder Travis Snyder himself. We are reprinting the letter here in its entirety, but you can also read it on the Color Run website if you wish:

Hi, this is Travis Snyder.

I wanted to respond personally to this matter. As the founder of The Color Run, I’ve had the opportunity to work with many successful creative partnerships of all sizes, including amazing photographers. I respect their ability to capture the essence of our event and fully believe that they deserve attribution for their work to showcase their talents. This issue with Max is a single anomaly and quite frankly makes me sad. Max first came to shoot The Color Run because we granted his school class non-commercial access to come shoot the race in Miami where the photos in question were taken. After this, Max actually ended up working our events over the next year as a non-photographer and traveling and setting up with our traveling teams.

About a year later, Max first initiated questions about the use of some of the Miami photos. We sat down and genuinely tried to reach an amicable solution, including offering financial compensation and exposure through our networks. Our offers were declined, and met with the following demands:(language taken from legal filings)

-”$100,000.00 US deposited into my business bank account” (This amount went on to be raised by Max to $300,000).
-”To be named the Official Photography Sponsor of The Color Run (Globally) for the remainder of its existence.”
-”Max Jackson Logo to be added in sponsors section on the bottom of all web pages”
-”My name to read at the bottom of any TCR photo’s used in legible print from the next print run forward as, Photograph by Max Jackson”
-”if no efforts are made within 15 days, to contact me I will be forced to take further action”

Understandably, these demands were quite difficult. They went far outside professional compensation and credit for photography work. We discussed other options, and ultimately when Max said he was planning to sue rather than continue a dialogue, there was little option left but to defend our rights through the legal system. I have been and will continue to be at the table to visit about how to resolve this outstanding issue.

As hard as it is to see tweets calling you a “#scumbag”, I love the Internet and its ability to give everyone a voice. I also appreciate the opportunity to share more information and insight into a complex situation. My personal hope and intention has always been to get this resolved directly, amicably, and fairly.


Update 3: The Color Run has gotten in touch with us once more to let us know that the matter between Maxwell Jackson and the themselves has been resolved without needing to go to court. We are reprinting the update here in its entirety, but you can also read it on The Color Run website:

I want to sincerely thank everyone for their voices and support as we’ve worked through this issue. We have been able to reach a joint agreement, which meets the needs of maxxsphotography.com and The Color Run. We are happy to have avoided the drain of the legal system and look forward to the continued success of both companies.

As referenced in yesterday’s statement (written below), my hope was always that we would be able to reach a fair and mutually acceptable resolution. I am grateful that through this weekend we were able to resume discussions with Max and come to a solution.

I want to be clear that the recently resolved issues were never about The Color Run lifting and stealing images. From the beginning, we had a contractual “use” agreement with Max. We received high resolution, un-watermarked images for use online or in print. The problems arose from a poorly worded, semi-verbal contract. We both had a genuine misunderstanding about the terms of our agreement when it came to photo credit on printed images. The recent negotiations revolved around finding a fair resolution to that misunderstanding.

Lessons Learned:

-If you are a business, be explicitly clear about the use, compensation, and parameters of the agreement with the photographer when sourcing images. Make sure it is all in writing in order to protect each other.

-If you are a photographer, understand the level of access you are providing and also protect yourself with clear, written, release agreements.

-Lastly, if a misunderstanding arises, enter into a respectful and ethical discussion about how to resolve the issue. In our new social/visual/online world, businesses and photographers need a great relationship more than ever. Assume the best in each other and make it work.

There is no doubt that the social media voices on both sides of the issue provided meaningful insight during this process. I sincerely appreciate those that presented thoughtful perspectives on the situation and how to resolve it.

-Travis


Image credits: Photographs by Maxwell Jackson


Thank you to everybody that sent in this story. The number of readers hoping we covered this is just too many to list but it’s obvious our community really wants this story to get out.


 
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  • Eric Jackson

    timeline in youtube vid description…. Thanks for your support and curiosity in this issue.

  • Eric Jackson

    i am not a fan of the movie so I didnt get the parity, seen it yes but not a fan.

    I thought it was bashing maxwell jackson, but as his dad i laughed my ass off and said well thats pretty cool that someone even though to take the time to pick on you like that.

    I though it was also infringement, before i saw the clip and understood the parity. but sadly the 300k did not cause silence in the board room at Travis Lyman Snyders House.

    It took YOU all here on PetaPixel thanks max’s dad. #tymax

  • Eric Jackson

    every lawyer friend we asked back in July agrees with your take on this.

  • Eric Jackson

    do you understand the law behind “a demand”,

    or an opening negotiating position, I love some of your statements but not this one.

  • Eric Jackson

    Yeah we tried that angle several if not a dozen times. max’s dad #tymax

  • Eric Jackson

    Thanks so much for the support of my son.

  • Eric Jackson

    photo’s 8 registered copyright, 300k came after bogus lawsuit and termination. Timeline in video search google

  • Eric Jackson

    not anything i read in this post, even applies to breach or copyrights or ownership. BUT LOVE THAT WE ALL ARE TALKING ABOUT MAXWELL WILLIAM JACKSON…. smile all the way to the bank…

  • Eric Jackson

    timeline posted to “you tube” description. search save me the moderation… max’s dad…

  • Eric Jackson

    Thanks, not sure if you are right on the value thing, we just went for a # they could READ

  • Eric Jackson

    it didnt work

    so we picked their # 3 times what jackson made form him lying about working at TCR. cuz that was FALSE according the 9 count federal filing. but not to the first paragraph of the founders first release. so we 3x’d the 100k after the bs lawsuit

  • Eric Jackson

    perhaps the extortion was TCR and Stole Rives, filing a fake lawsuit….. AHHHHH max’s dad

  • Eric Jackson

    yes have seen runner waiver docs

  • Eric Jackson

    all true, but that is a different story not this one! thanks for the help and attention in this matter, regardless I am thankful for people like you that choose to ask questions.

  • Eric Jackson

    all runners have signed releases in this issue…

  • Eric Jackson

    my calculation about a mil a weekend free and clear – with hundreds if not thousands of volunteer american’s foolish enough to work for free, for a company than makes themselves look like a 501C3 and are actually NOT. and that calc was in july 13 when this took place its more now for sure.

  • Eric Jackson

    at this point I just love u cuz what ever you say helps max, Thanks again Helena youre awesome.

  • Eric Jackson

    kinda shows where the greed is here

  • Eric Jackson

    i am a writer so I say publish as habit my bad. max’s dad #tymax

  • Eric Jackson

    but their user agreement trumps DMCA

  • Eric Jackson

    Thank You So Much … for all of you helping my son. thanks really

  • Eric Jackson

    any talk here seems ok but off topic

  • joedecker

    Actually, I argue it doesn’t, although my argument would need to be tested in court. Copyright stripped images are neither the original image, nor, “derivative works” in the intended legal meaning of the term. EXIF information is metadata, not data.

  • Eric Jackson

    simple but true both ways…. Thanks -

  • Babb

    If they work with so many photographers and creatives they should have systems in place to avoid misunderstandings. And semi verbal contracts?!

  • Christopher Stivala

    We will allow you to take photos, we will publish your photos, we dont think you are important enough to pay. Shot these “projects” on your own and we should get it free just for letting you in! That’s how I read these organizations, out to make money off you, just depressing for these young artist trying to make a living, more so if the event is for profit!

  • pointe315

    God you people are idiots. Nobody in this comment thread seems to be aware that the WORTH of the photo means absolutely NOTHING here. It’s about the fact that the color run STOLE COPYRIGHTS. You can’t massively reproduce a photograph without explicit and complete copyright release from the PHOTOGRAPHER, aka Maxwell. I don’t understand why everyone keeps saying “wow how dare he ask for 100k for a photo” when he’s only using that as a beginning negotiation point, not to mention he’s not asking for 100k for the PHOTO, he’s asking for it based on their breaking of copyright law. God you people are so thick.

  • Eric Jackson

    Update: 2-18-14 TIMELINE OF EVENTS – and then you TALK #tymax #froknowsphoto

    timeline – from eric jackson max’s dad as i remember it.

    July 2013

    1 Call from max to me – TCR using my photo without my permission.

    2 Letter to travis demand for 100k and lifetime photographer sponsorship – shoot for the stars

    End of August 2013

    3 Michael Ward counsel to The Color Run, who we investigated and were pleased that he also reps for Mrs Fields Cookies, so i figure he’s a good guy, Michael and I negotiated max down to 30k and credit and listing on footer and keep working with us. :-) All smiles.

    ps to #froknowsphoto – the footer was for a resume not clicks. Dude logo next to Chevy screen shot, come on rethink that stand.

    week later, September 2013

    4 tcr refuses photo credit and logo placement – (that TCR lawyer leveraged as will make good on any visibility lost along with the 30k license)

    4a max refuses because tcr will not give him credit beyond a social shout out.

    4b max gets contact from his color run work director Ryan and harassed for not taking the money.

    4c travis goes to outside lawyer to file against max for trademark infringement because he falsely stated on his personal Facebook (tcr ex B) while MAX negotiates with in house counsel.

    5 max refuses because tcr will not give him credit beyond a social shout out, I wont push him.

    September 2013

    6 max gets trademark suit saying he never worked at the color run and any posting on his FB was theft of TCR trademark???? I said to ourselves, “max dont i have video of you working in a pink tutu serving water for the color run.” he said “yes” “ok i was not dreaming” cuz that is not what these papers say from fed court.

    6a GPA down for working on this non-sense – threat of removal from paid FAU University Press photo editor position for grades

    7 Max Gets Fired from Silverback the Ryan guys company, that Ward told me was owned by Travis Snyder as well.

    8 house counsel tells max color run has filed and max has til days end to take the offer of money only with a social shout out. “end of conversation with michael ward esq”

    9 max gets docs from new firm so he replies to new firm with new offer, after being defamed, fired, and told sorry no credit -aside from the fact that federal filing violating Court Rule 11 is Strictly Prohibited and they have now put Max’s life in public court docs. (statement form TCR founder Travis first paragraph “Max actually ended up working our events over the next year as a non-photographer and traveling and setting up with our traveling teams.” )

    #well that is not what the Federal Filings contain Travis, TCR, and Stole Rives say it quite different in the 9 counts of the federal case against my son.

    September ending

    10 the 2nd demand To Stole Rives – $300k plus 50k for each color runner if TCR could not produce their releases. withdraw your frivolous suit or else; every partner in the Firm was served this Demand.

    11 silence from all

    12 have to answer and cross complain -time and money we didnt have

    13 have to file and request counsel be appointed because this is Federal

    14have to figure out how to end this

    October 2013

    15 social media it

    16 wait first lets contact Michael Ward once more to try and work this out.

    November 2013

    17 no reply from ward

    18 social media it

    December

    19 no wait and lets see if we get a lawyer

    20 social media this

    21 no lets tell ward we are going to social media this

    22 contact ward and no reply

    End of January 2014

    23 appointed lawyer from utah court

    24 hear from new lawyer need 50-100 thousand in paper and incidental costs beyond the hundreds of thousands in our no charge time.

    25 max calls me

    26 we conference with new court appointed utah lawyer

    27 he give us little security with his direction but ok lets do it.

    few weeks ago

    28 reach out to ward before you sign the new lawyer on cuz he cant talk to you once you sign

    2 weeks ago

    29 reach out to ward one last time

    30 no reply

    Beginning of valentine week

    31 conference call to new lawyer i ask how much to start 1000 or 5000 he says 5000

    32 max hits up go fund me

    2/13 around 4ish by 4 the next day this community caused it to go viral within the community. First check to lawyer for 5k is now covered wheew!

    33 within 24 hours color run has a link in the bottom corner of the page and it is totally stories about max and this.

    34 i call max on valentines max says, “there is a link on TCR page to half truth – me, but they couldn’t have just put me up there and say thanks great picture. too funny”

    34a Ward —- Not Stole —- Contacts max on Saturday – can we please talk. And settle this today. max says SURE, even though he had mid-terms. “max never left the settlement table in this matter, until filed upon and even then kept his head”(ej)

    now judge PLEASE

  • http://www.winslowpicturecompany.com/ Graham Marley

    Were they registered within three months of creation?

  • Nick

    Thank you for your mild mannered, well thought out and reasoned response. ;)

    At this point, I have to ask the obvious question – how much do you know about copyright law, in terms of damages? I suspect little, so let’s take a brief detour into that world, hey? (fully acknowledging that I am not a lawyer, though have tertiary level legal training, and also acknowledging that I’m most familiar with Australian law, while being aware of the similar tradition both legal systems rely on, and of their differences).

    First of all, by far the emphasis in civil cases such as this one is compensatory damages. A court would be most focused, if it found in favour of Max, on how much income he was deprived of through a contractual breach. I’m not going to speculate on the exact amount, but I’d take a gamble and say it would be less than $100K, let alone $300K. A photographer who could reasonably expect income of $100K for a single photo is a happy man indeed.

    Secondly, for basically any other kind of damage (i.e punitive, or even some sort of enhanced damages), the court would probably have to find that TCR acted maliciously. That is, they knew exactly what the terms of the contract were, and that the people who made the call had full knowledge of the contract, and acted deliberately, knowingly, and maliciously to deprive Max of his rightful income. Depending on which jurisdiction, you may even have to prove that beyond a reasonable doubt (i.e to a criminal standard). Again, not all details are forthcoming from either party, and the case has not been tested in court, so we can’t be sure, but again, I’m willing to suggest that TCR’s conduct may have been ignorant and careless, but not outright malicious on a criminal scale. If Travis’s account is anything like reality, I doubt a court would find punitive damages applicable here. There’s the potential that some damages may be awarded based off the revenue brought in by the ads, but I suspect it would have to be proven a) what amount of profits came directly from the ads b) that the ad effectiveness was intrinsic to that specific photo, and not some other aspect of the ad. Again, if there was some damage awarded here, it might well be very small.

    Thirdly, I’m not sure the case would exactly fit into copyright law. There was some sort of semi-verbal agreement, it seems, between Max and TCR, so this would be a breach of contract matter, ultimately, more so than a copyright one (although TCR were willing to sue on copyright grounds, it seems. Still, that was mostly to do with Max’s reference to his working for TCR and use of logos than anything, so I’m not sure how that would play out. In any case, that would be a different case to Max suing TCR for breach of contract). I’m not sure whether US law has any statutory enhanced damages for breach of contract type stuff, and on what grounds. At best, it might triple the compensatory damages. Still not convinced he could reasonably expect to earn $100K from those damages, especially seeing as TCR are the only ones who would conceivably pay any money for photos of a Color Run.

    As for the negotiation point, sure. He can start with whatever asking point he likes. That doesn’t mean a) it’s a reasonable starting point b) that it should serve at all, in public or in a court, as a reasonable benchmark for compensation c) that TCR wouldn’t be entitled to tell him to get stuffed and try another number.

    In all reality, a court case, best case scenario, would probably mean TCR would immediately have to remove the photo from all ad material (or otherwise put Max’s name on it if they continued to use it), as well as a payment (thought likely not near $100,000) in compensation, as well as TCR paying his legal costs. I suspect the legal costs would be more than any likely damages.

    Anywho, if you wish to reply to this, go for it. Willing to has this out. However, I suggest you avoid calling people thick if you want to have a discussion about ‘stealing copyrights’ in future. God probably isn’t terribly interested in what you think about other peoples’ intellectual capacities, either.

  • pointe315

    Don’t worry, I shall ignore your suggestion on not calling people thick in future copyright discussions. Also, if you keep up with anything, you’d know that max and the color run reached an agreement. Maybe you should stop being thick on current events, not just copyright laws. :)

  • Nickisthick

    Lol you’re from Australia? Stop pretending you know anything about copyright laws in the US. I know we are a really interesting country for you to spew your opinions all over, but seriously I’m sure also that God isnt terribly interested in your thoughts on this matter either.

  • Nick

    Excellent:)

    Yes, I was aware that they’d negotiation had finished out of court. I wasn’t aware that that meant all discussion of the matter must cease immediately.

  • Nick

    Everything in me screams not to feed the troll, but I just…can’t…help myself.

    You’re right, you guys are an interesting country. Keep it up!

    And yes, I know God is utterly disinterested in what I think. Didn’t suggest otherwise :)

    And I’m totally willing to believe I know nothing about US copyright law (though, again, I suspect Max’s case against TCR would have had much more to do with breach of contract than copyright infringement, just based on common sense). So tell me, what specifically did I get wrong? Common law principles, caselaw, or a statute would be nice.

  • Nickisthick

    Some people are time wasters I guess. I’m sure you had fun googling all that stuff in your long schpeel, that I didn’t care enough to read, so that you could appear as the more knowledgeable one.

  • Nickisthick

    Btw a good lesson for future discussions in your life: Be more concise.

  • Nick

    Ohh, that’s a little harsh. I just didn’t want you to think I was thick! ;)

  • Nick

    Hey, you’re still sitting there, hitting reply, right? Not to mention that I LOVE the name change.

    And yes, I’ll admit it, I did Google to check a couple of things – statuary enhanced damages are new to me. But pretty much everything else you can pick up in a few weeks of torts. Not that big a deal.

  • Nickisthick

    In this country, if somebody uses a photograph you took and you did not give them a written, explicit and complete copyright release, they are in violation of copyright laws. No matter some little facebook/email agreement where max said here’s my high res photo for you to use wherever. Because he didn’t give the copyright release, and TCR didn’t ask for it, they are absolutely in violation of the law. And Max is not obligated to give a copyright release with a photo. Thats just how the law works. I’m not going to link you to the copyright office page, you can do that yourself.

  • Nickisthick

    As a fellow photographer, I am always in support of people like Max, I sincerely hope that whatever agreement you were able to reach with the Color Run, that it was fair and Max got what he deserved.

  • Nick

    No, I don’t believe that is true, even in the US. Again, point me to a specific statute or case that disagrees, and I’ll submit to that. I did flick through the Copyright Office website and pdfs, and saw nothing about a specific release form being required. As in most jurisdictions, all that has to exist is a sufficiently clear agreement, verbal or written. For the court to accurately determine the existence of an agreement, usually at least part of it must be in writing.

    There was a Facebook conversation between someone at TCR and Max Jackson. As far as I know, no one disputed that claim. Even assuming no other written communication until the dispute, that may well be considered a valid contract in court. So the issue is not simply that TCR infringed copyright. They had seemingly been given some rights to use the work. What would be in question is whether they broke the rules of whatever contract could be proven to be in place. Whether Max gave them a specific kind of written release is irrelevant – he voluntarily gave them unwatermarked originals on specific conditions, at least some of which are recorded in writing.

    The use of a specific copyright release form or similar would certainly have been useful here – then everyone would have known what they could and could not do, and courts would have had incontrovertible evidence when it came to a judgement. But a release form per se is not required – it’s simply there as a documented agreement to back you up when things go pear shaped, this story case in point.

  • Nickisthick

    You are so tiresome. You don’t need a form, you write a release yourself, geez. Clearly you aren’t a photographer. If somebody wants to display someone elses photo and claim it as their own, then THEY NEED COPYRIGHT RELEASE IN COURT, regardless of max voluntarily giving them a high res photo. Laws have implied language, so re-read them. I’m done with this comment chain btw, I have better things to do, enjoy google.

  • lord eels

    I hear that. what a rotten situation. please don’t let this event ruin your sons love of photography.

  • Mike Yoder

    I don’t understand how it’s possible for Color Run to even think there is a requirement for press application or credentials. That’s insane. As a photojournalist, there is no way they can keep you from photographing their event when it is in public on public space. When I have photographed it, I have been aware of no restrictions, or barriers keeping any photographer from shooting what is clearly visible. They want the publicity! This quote from Travis from Color Run makes no sense “Max first came to shoot The Color Run because we granted his school class non-commercial access to come shoot the race in Miami where the photos in question were taken.”
    Not sure what he granted, because the students could have photographed regardless of the event sponsors permission or not.

  • http://sochisucks.com/ Sochi Sucks™

    The only question that the court wants to know is “was Max a paid employee of The Color Run at the time the photo was taken.” If the answer is yes, it’s game over for Max. If the answer is no, Max has a case. Copyright laws is pretty straight forward. If you’re a paid employee, the company owns the IP. End of story.

    Max was naive no doubt in granting the usage and demanding $300K, but he still the legitimate owner of the photo. At the time of the photo was taken, he was not a paid employee of The Color Run. The Color Run was naive in thinking they can use the photo in perpetuity without a written contract, they shouldn’t be mad at Max. They should have paid him and move on.

  • dgr

    What a childish kid. Asking for far too much. Ruining his own reputation for future work. Hope he get drilled into the ground by Color Run so he learns to deal with situations like an adult!

  • Eric Jackson

    300k didnt come until after the Federal Filing for TM in Utah, instead of Photo ownership in FLA?

  • Tosit

    I guess you don’t realize that when something like this happens to one photographer, it sets a precedent for companies thinking that it’s ok to do this to other photographers. Divide and conquer is their strategy to get free images, we must stand together and make sure everyone gets compensation. Or else we are all gonna be screwed.

  • http://www.bobcooleyphoto.com/ bob cooley

    Actually it’s not that straightforward. If the terms of his contract state that his employment with the company makes his work “work for hire”, then the company automatically owns copyright. Otherwise it’s not that clear cut.

  • http://www.bobcooleyphoto.com/ bob cooley

    Sorry, that’s not an opening negotiating position; it’s an unprofessional, naive and frankly insulting demand to make. It shows immaturity and will only serve to make the company he’s negotiating with take him less seriously.