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.


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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.

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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.

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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.


 
  • Nanucks

    And that is why you never give away an image for “credits”…

  • sicoactiva

    Outrageous.

  • https://twitter.com/adamhowardcross Adam Cross

    “our other photographers have gotten some good exposure from this”… ugh, *pukes* I hate that spiel

  • Jeremy

    You’ll should read the facebook user’s agreement. The photographer re-licensed the use of his photography the moment he uploaded it.

  • B.L. Blazy

    Go Max Jackson and keep shooting – I think that you are on the right side to deserve proper compensation.

  • J. Christopher Little

    We have a similar race here in Oklahoma City. Sent an email to the organizers and they responded with a press application that included surrendering the copyright. I think there was also a fee.

    No thanks.

  • SunnySD

    Funny, I shot one of their events in San Diego, never got the measly payment from them – they claimed they were “broke” and couldn’t pay the photographers from that event (it was a small fee to begin with) One advice to anyone even remotely thinking shooting these kinds of events — stay away, you will ruin your equipment and its not worth it. The dust is deadly to your events. Luckily I had my covered and it survived, but you are better off not even going there.

  • Angus McFangus

    I’d donate but the site doesn’t seem secure.

  • Joey Duncan

    What does that even mean, and what does it have to do with this situation? Did Facebook sell the photo to The Color Run?As far as I’m aware FB agreement allows FB to use the images, so unless FB sold it to Colorrun, your point is moot, and an unneeded attack.

  • Thomas Campbell

    Me, you or anyone else uploading the image to Facebook does not give The Color Run or CocaCola or the Sports Authority the right to use that image for an international ad campaign.

    You should read the Facebook User’s Agreement.

  • Mike G.

    Sue the suckers. If they can pay $500,000 to defend, they can pay damages; that comment will come back in court.

    Don’t be afraid to shoot, just narrow what the shoot is for, and spell it out, and don’t back down.

  • kaitb1103

    Go fund me is a well known secure funding site for regular people like you and me. It’s perfectly safe.

    Source: I’ve donated and run a campaign on it before.

  • Snarkasaurus

    Wow, this Travis character sounds like a douche-lord. Some people seem to get a god-complex whenever they do something “for charity.”

  • Shay Armstrong

    Just because he uploaded to facebook didn’t give away his rights! Without a licensing agreement from him, they shouldn’t have a leg to stand on. If he, and they, didn’t sign a mutual agreement, and he can prove that he has the original fele for the image, and there was not work for hire, then there should be no case!

  • wallnut

    What about personal rights of the people in the picture? Did they waive them when participating in the race?

    Probably should have given away low-res pictures..

  • Mario Liedtke

    I just hope Scott Winn will be tared and feathered for his rotten chutzpah.

  • Bob

    All photographers should boycott all Color Run activities from now on. There is no excuse for what this company is doing to this photographer.

  • MikeInMI

    It has been a while since I read the Facebook user agreement, but every article I’ve read said that once you upload something to Facebook, you’ve given away all rights. Does anyone else know the details on that?

  • Jason Nottelling

    Ah, extortion. The last cry of the guilty.

    Simple
    case law: you used his photo, he’s entitled to both credit and
    compensation. If you don’t want to pay what he’s asking, then you
    should have asked permission first and found out what he would have
    charged to use his copyright work.

  • Bingo

    The colour run must be managed by some of the most arrogant fools imaginable. If this photographer was offered an apology, and a contract that legitimised the use of the image for a reasonable fee, along with a clause in the contract that the photographer must not mention this blatant theft, He probably would have accepted, and the colour run would have avoided bad publicity and hundreds of thousands in legal fees. Idiots.

  • Dan

    this is relevant:

    Jackson wrote that instead, he was “requesting compensation as follows: $100,000.00 US deposited into my business bank account, additionally to be named the Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence, my Logo to be added in sponsors section next to Chevy on the bottom of your web pages. My name to read at the bottom of any photo’s used in legible print from the next print run forward as, Photogrph by Max Jackson.” He warned “if no efforts are made within 15 days, to contact me I will be forced to take further action.”

  • Jaleel King

    I can testify for gofundme too. I used them for a fund raiser recently.

  • Tobias W.

    Color Run = Thieves. That’s the message I get from the story, no two ways about it. I hope this creates huge Streisand effect for them.

  • Abraxsis

    To be honest, those requests do kind of come across as extortion. Fee and future attribution should have been enough for compensation.

  • flea

    Guess he got his exposure they claimed he would get.

  • MJF Images

    You’re wrong. Facebook (and all companies in this country) abide by intellectual property laws. You cannot make money off of the work of others, it’s against the law.

  • dor

    Most events such as this have a clause in the registration form stating that you understand that photographs will be taken and will be publicly used, and you agree to this by registering.

  • B & W Run

    He has got the exposure now, don’t it? Hahaha.

  • Bobby

    Im not a photographer but would like to know this : Doesnt a photographer need to get permission from the event and the participant to take a picture and publish it as his/her work? if he is being compensated on it, and the subjects in the photo are just being used.. how is that fair? Did the photographer get permission from people and the event organizer to take picture for commercial purposes? or are photographers covered under some other right/law?

  • MJF Images

    No you don’t. Read it carefully. Facebook acknowledges they are bound by intellectual property laws. You do give FB rights to use any images you upload. You don’t give users of FB the right to sell the image to Coke or other companies to use in ad campaigns. That said, the horrible FB agreement is reason enough to not upload any of your property to that website.

  • harumph

    The photographer does not need permission from anyone to shoot the event. There are tons of photographers at these runs. Nobody needs permission to do that. And if anyone is violating the rules regarding model consent, it’s the people who stole the photographer’s shot. Sports Authority are the only ones using the picture for commercial purposes.

  • harumph

    It looks like somebody advised him to file a ridiculously outrageous demand, maybe in the hopes that they would negotiate with him.

  • harumph

    In a word, nope.

  • Thomas Campbell

    It depends on the event, but in general, if people are in public and you are in public, you can take pictures. No permission would be necessary.

  • harumph

    Silly. Why do people still believe this kind of scaremongering?

  • Thomas Campbell

    If they didn’t pay you, they breached their contract and any use of your images by them is a copyright violation.

    Without paying you an agreed upon amount, they do not have the right to use the pics.

  • http://www.sin3rgy-creative.com/ David Liang

    Wow, that does change things a bit. Now it seems while both sides could have come to an agreement, they both instead chose to overstep their bounds. Based on what is know though it still would seem Color Run infringed on the photographers intellectual rights, regardless of the photographers ridiculous request for compensation.

  • wojtek

    Color Run isn’t a charity.

  • Fred

    THe photographer said in the article: “They asked if I wanted to work color runs and it sounded like fun and good money so I said yes.” That sounds like a work for hire issue. In addition, although a ‘photo is copyrighted when taken’, unless the image is actually registered with the Copyright Office, he would be limited to charging ‘fair use’ rates without damages.

  • Michael D. Rubin

    I don’t have the text of the complaint and not sure where this came from, but this is for a judge and jury to decide. If someone does have the complaint, I’d love to read it rather than paying to get it. I’ve seen the quote above appear in a few places-but no one can point to a source-randomly appearing in message boards…

    At the end of the day they asked for his image for one use-Facebook. They didn’t choose to sue for Trademark infringement then and did not object to his usage. If he used it in an editorial content, they have no leg to stand on. If he used it commercially, there is some merit.

    Further they used his work commercially and broke his copyright. The damages are potentially huge and will probably outweigh any trademark infringement.

    I will agree he was naive and if his actions up until now were poorly planned. I wonder if a lawyer will take this up on a contingency basis.

    I’m not a lawyer-I just play one on forums and message boards…

    I’ll be watching this one closely…

  • Snarkasaurus

    My mistake. I got it confused with some of the other “color runs” I’ve seen that do things for charity.

  • happusa

    If an event is held in a public location without reasonable expectation of privacy, shoot away, no permission needed. The photographer and/or the Company may use the photo in any way except for profit. If you want to sell a photo for profit, with a recognizable logo, you have to blank it out or get permission from the owner of the logo. The same goes for the Company that stole it. If they use it commercially the they at least owe you credit and/or compensation.

  • Nick Dubstyle Stephens

    Ridiculous!!! Twisting words and bullying a photographer like that. I can’t stand seeing this. “Our photographers got great exposure from this” That’s exactly what everyone freaking says.

  • Nick Dubstyle Stephens

    In addition, you should read up what those color runs will do to your equipment

  • daveinmaine22

    What is the Baltimore Sun Times? I grew up in Baltimore and my father worked for a paper called the Baltimore Sun, never heard of the Sun Times.

  • Nick Dubstyle Stephens

    I totally agree with this. It doesn’t matter how ridiculous his demands were because Color Run have broken the law and he has the right to sue them for it. So they don’t really even have room to try to scare him away by this “lawsuit”. I honestly even think it might be a bluff to scare him off.

  • Maggiemags

    I hope Maxwell gets a really good attorney and counter sues them…..shame of the Color Run people…they should have known better or a least got their ‘ducks in a row’ before using images not their own……Shame, shame!

  • http://www.sin3rgy-creative.com/ David Liang

    Yeah, Color Run is still in error. They faltered first by not seeking proper licensing to begin with, which opened the door for the photographer to seek his ridiculous(IMO) compensation demands. Color Run once again made an error by reacting emotionally and not rationally, had they simply replied to the photographer that his demands were too much, but that they would make reparations, they could have avoided damaging their public image as well as legal fees.
    IMO Color Run’s management can only blame themselves for allowing this situation to occur, because on no less than 2 separate times could they have avoided or better handled the situation.

  • mrglaw

    there are legal issues here that go beyond copyright or contract. acquiring goods or services by false or misleading representations (which csn include nondisclosures) is actionable fraud.

  • Wodan74

    No, Color Run is an idea they stole from an Indian tradition and trademark it as their own… :-/