In case you have not heard, earlier today, we published "The Color Run Sues College Photographer After He Asks for Compensation for Image" in which we shared a crazy story told by the photographer, Maxwell Jackson. To sum it up, in case you decide not to visit the link, Jackson took photos for one of the The Color Run's events in 2012 with his college group. He shared his images online and was approached by someone from The Color Run asking to use his images on Facebook, with his name attached, so he can get exposure. A few months later, Jackson sees his image on promotions in Sports Authority. Fast forward a bit, he contacts The Color Run asking for compensation for use of his images, and to point out they did not do what they said they would. Shortly after, he finds out The Color Run is suing HIM in court for posting on Facebook that he worked for them.
The Color Run's owner and founder, Travis Snyder, has reached out to the Fstoppers team and sent us a response to his side of the story.
I really recommend visiting our last post to see the entire story that he shared with us to get a full understanding of what is going on. But now, let's take a look at what Travis, owner and founder of The Color Run, has to say in response to Maxwell Jackson.
"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 for any organization. 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 me a "#scumbag", I am amazed by 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.
-Travis"
![[UPDATED] The Color Run Sues College Photographer After He Asks for Compensation for Image](https://cdn.fstoppers.com/styles/small-16-9/s3/wp-content/uploads/2014/02/The-Color-Run-sues-college-photographer.jpg)
If what Travis said is true I would have to side with him. Technically he may be in the wrong but Max was making very unreasonable demands.
"Unreasonable" is entirely subjective. Had Color Run gone to him _before_ committing copyright infringement, they could certainly have negotiated something more reasonable to them. But, since they didn't, he can demand whatever he wants. That's Color Run's own fault, they removed themselves from a bargaining position. Statutory damages for willful infringement can be $150,000 per work. There were 8 works, so $100,000 seems very reasonable compared to damages of $1,200,000 (plus the infringer pays all legal fees, etc.).
I'm currently leaning more on max's team but in all honesty some of his demands were just plain stupid.
Official photographer in perpetuity? REALLY?
In his position I would have taken the 30K and walked away ... a lot of bad decisions on his part. It's not like they were offering him micro stock rates or something.
If Max gave TCR permission only for use on their FB page and then they used it elsewhere, they have committed a copyright infringement. What Max is demanding after his photographs were used for commercial gain (if you look at the photograph above Sports Authority is using the photograph), is proper compensation. What the judge or jury in this case should have access to is the financial records showing how much Sports Authority, Coca Cola and all others paid for use of the photograph and then take every penny of it and give it to the photographer. If you were the photographer and someone else was profiting from your photographs after lying to you about their intent, you would not hesitate to make demand either.
In Max's letter to Color Run posted in the comments above, his gripe was not that the images were used in print and promotion but that they were used without attribution.
The "no use off facebook" angle is a fallback meant for public consumption. 'Taint the reality of the agreement.
Max will lose the case on one sentence alone.
"The Color Run granted his school class non-commercial access to come shoot the race in Miami"
This means that the school, and subsequently the schools students agreed that the condition to being allowed to photograph the event, the images taken had no monetary value and could not be sold commercially.
It is the same clause you will see during all the Fashion Weeks and similar events, where the organisers will allow some student photographers access, alongside their paid official photographers, so they can collect experience and images for their portfolios. The clause is to protect the salaries of the official photographers.
I think both parties need to reread that original agreement and contract that granted Max access to the event in the first place.
The photos were of an outside, public event where there is no expectation of privacy. No permission was needed to take photographs, commercial or otherwise. This is different than photographing a fashion show held inside on private property.
Color Run is a for-profit corporation, they're the ones using the photos commercially.
Do you know that for sure? You're positive it didn't take place on a private track?
Color Run in Ottawa is through the city ... all public property. That doesn't mean it's the same on all runs but ...
Yes, it was run through the city of Miami which means it was run on publicly-owned roads and sidewalks.
You obnoxious.
But TCR used that "non-commercial" photograph for commercial purposes, not the photographer so your reasoning is flawed.
As i said elsewhere, it wasn't a class that went, it was a handful of people, most of whom actually paid to run the Color Run. The school had nothing to do with it, it was an arrangement made directly.
But no, that wouldn't make him lose this case because if the photos had no commercial value, TCR would not have used them to generate more money, which they did.
You seem to be arguing with yourself... "The clause is to protect the salaries of the official photographers." This means the student photographers can't sell the images. Well, Max wasn't selling any images, TCR was. That agreement has nothing to do with the case, since TCR asked him for specific (non-commercial) use of his image, and then turned around and used it commercially.
TCR didn't sell the image… they used it for promotional reasons. Which was agreed on.
Sorry, I didn't realize you were involved with TCR. Can you show us the part of the signed agreement that states TCR (you) can use 8 specific images in an international print marketing and internet campaign, and also sell/license the images to third parties? I'm not sure if you know much about photography (most people here don't), but in order for someone to use an image, it has to be licensed to them, with specific usage and distribution laid out. Many, many sites, newspapers, and other companies are using images that TCR (you) provided. Either they (you) freely gave out all the files, or at least some of those third parties paid to license them. Not being a photographer yourself, you may not have known how the business side worked so I thought I'd explain.
I wish you would have come forward sooner. It could have saved everyone a lot of confusion and speculation.
I have nothing to do with TCR… I just did a bit of research… Just like a lot of other people in the comments have stated… there is a lot that has been left out of this story by both parties to make their case look better..
do some searching.
If you have the relevant info, you'd have posted it instead of "do some searching". You're my inside source, so please show us the signed licensing agreement for the 8 images, and/or the signed agreements for all the third parties saying how the images were licensed to them.
The only way I could ever be classed as an inside source is I know how contracts work.
I have nothing to do with TCR or Max and I have never claimed to have any inside information. Only stated that I took the time to click and read all the documents that others have posted in these comments… and you can do the same.
I just stated that Max will lose the case, or settle outside because he has been told by a lawyer he will lose the case…
if however this doesn't happen, I will happily declare I was wrong..
but I really don't think I will need to do that.
lets see what happens.
ty max's dad #tymax
go read copyright and contract law dani...
you don't think I know copyright law?
As we have learnt from follow ups, Max gave Color run high res unwatermarked images to use.
He gave permission.
The only problem was both sides didn't read the same as to what that permission meant.
That means this was a misunderstanding of contract, not copyright theft.
I'll explain a little deeper then.
TCR has the original contract. This contract states that the photographer in question is granted access to the event to gain experience and collect images that can be used for promotional purposes only and have no commercial price or value.
TCR probably also had it in the in contract that they can request promotional use too, but lets for a second assume they didn't. TCR now ask if they can use the promotional use only image in their promotional materials too. I.e Non commercial image being used in a non commercial promotional fashion by both the photographer and now TCR.
This is still in contract and still doesn't breach.
TCR then use it for a national campaign. Whether this was an oversight on a staff member or intentional, a national advertising campaign is still 'promotional purposes' and unless TCR sold the image, they are still following the contract. Yes they left out his name, but you almost never see the photographers name in promotional content, only in editorial content.
After TCR was approached by photographer asking for reasons why the image was in national print. He was offered a fix. in response to his name not being on the poster (which would have never happened anyway, but TCR took the high ground) he was offered a feature. A PR marketing piece that named him photographer of the year, and told everyone on the website and any of their subscribers who the photo was taken by.
He was also offered a $30,000 cash settlement.
All this is still in keeping with the original contract.
Following the national campaign, photographer was offered more promotional content.
But this is where the photographer breached…
Instead of taking the extra promotion and the sweet cash settlement. He countered them with the sentence… "My photograph is WORTH $100,000…"
This puts the photographer in breach of the original contract and not TCR.
This means the photographer can be sued by TCR for 'attempting to sell an image that was taken under a promotional use only contract'
This is why Max will lose his case.
So you do work for them and you do have this contract on hand... Why aren't you coming forward and posting it? You're really confusing.
You also seem to have a bunch of your facts and the timeline of things different to what both sides have presented. I figure this is either because they're both lying and you really know the truth, or you're talking out your ass.
For example, it's not "selling an image" when you request a licensing fee for what they already used it for. Plus it wasn't one image.
My guess is you have no idea what you're talking about. Except the fact that Max will definitely lose his ca.... oh wait they already settled with him.
ty
I feel like this is something YOU all SHOULD know... Max Jackson has not been completely honest...
He has all led us to believe that a contract was breached with TCR because they used his photograph on print and various websites without his permission despite him agreeing to use it on Facebook. Max Jackson ACTUALLY agreed for them to use it on their web, in print and for promotion, as said by his letter to Travis Synder, which can be found on his blog here: http://thecolorrunsuedme.files.wordpress.com/2014/02/the-color-run-breac...
The agreement was that TCR could use the photos on their facebook, print, promo and web (according to Max's letter to Travis) in exchange for credit. The reason why Max is REALLY asking for money is because TCR failed to print his name under the photo on print or on any of the promo, NOT because they breached contract by using it on print, like they were allowed to do.
Max Jackson has been hiding information to make him seem less greedy.
So the question now is, is $100,000, let alone $300,000 WORTH compensation for leaving out a photographers name on print and promo? Max Jackson thinks so. He claims, in the letter, that $100,000 is a small portion of 'potential income' that would of been made from 'exposure/credit' had his name been displayed under photographs. I can tell you now, after hundreds of my photographs being published in music magazines, I have never once received any work (or very little) from my work being credited. My name has been left out plenty of times in print but I would feel like I would have some serious balls to ask for financial compensation because of so. I think TCR offering $30,000 was extremely generous if I say so myself.
Max Jackson is a scammer.
As stated by my friend Jess, He acted like an idiot and took some terrible advice from some massively uninformed people.
He gave them the right to use it with photographer credit on the photo. As this was not done, he is well within his rights to ask for $100,000 or $300,000 or heck, even more.
Since people have seen it without the credit already, he deserves financial compensation per person who has seen it without photographer credit. Since there's no way to tell, but this was a large campaign, it's fair for him to ask a large sum. After all, they never agreed to use the photos royalty-free, the equivalent to the royalty payment was photographer credit - as this was not provided, he could charge a royalty per viewing.
He is *perfectly right* to turn down $30K. That's about £17,000 which is a paltry sum in the UK for a set of photos used royalty-free in such a large campaign.
Keep in mind they didn't just use one photo, they used a set of 8.
No where does that letter say or imply that he agreed for his work to be used in print.
Fourth paragraph. Read it.
English obviously isn't your native language, because the 4th paragraph says nothing about him agreeing to use of his images in print.
"I provided to Scott, and no one else, with the condition that I would get photo credit wherever my the pictures were used"
#EpicMikeFail. #Readingisfundamental.
LOL. Says, and implies nothing about print use. You're an idiot.
Ah, one with an intelligence rivaled only by garden tools. Alright I'll draw this in crayon for you. "Wherever my pictures were used".
From the google dictionary: Wherever. Adverb. "In or to whatever place (emphasizing a lack of restriction)."
With no limiting language, "print use" is a subset of "Wherever".
Here endeth the lesson, functional illiterate Mike.
You dumb.
He's smart
And if "Credit" was to be given, and it wasn't, I t makes your smug self wrong, but feel free to talk more about garden tools.
Why, yes, I am the sharpest tool in the shed. Thanks for admitting that.
However, his stating a simple fact about "wherever [his] pictures were used" in no way implies that he gave permission to use them in those places.
which implies if they had credited him in SA when he saw it he may have just smiled been happy and not cared they left FB cuz his contract was upheld and his name was on the photo credit as agreed.
Yes, it does. Read again, and again and again.
regardless what you read in max's demand letter, - the contract is posted , FB conversation only period and end of sentence. clear enough... Max's dad #tymax
Implying Max Johnson is a liar is unfair. The courts will have to decide as it was actually The Color Run seems to be negotiating in bad faith after they are claimed to have violated a owners copyright, in the US and abroad. I believe you need to reread his first letter as your comprehension of it was off. Kindly read over the letter again, and you will see you misunderstood that there was any statement granting wide usage, he simply did not clearly state one way or the other, in only saying to "use my photographs without Watermark." You do understand that letter was an opening gambit in trying to negotiate from a position of strength, as you always ask more then you want, so you don't come up short? This is a typical move here utilized here in the US, especially when dealing with an international entity.
From one side of the account "It succeeded in getting their attention and we negotiated with a wonderful attorney Michael Ward of The Color Run. The negotiations brought the finance part down to $30,000 paid to me for lost visibility. 60 days with my logo on The Color Run’s footer of its sites which Ward offered as well as continuing work with the company, and a shout out on social media, with their suggestion of saying I took the “Photo of the Year”, and a couple of plaques of the pictures so we could all laugh out loud when we grew older and see how much time effort and money was saved." but then "...after I was ready to settle and have ," Take note of this part now "settlement paperwork sent out to The Color Run, I was contacted by Michael Ward (attorney) of The Color Run and he told me that they would not be able to offer the 60 days on bottom of their website which he had previously agreed. At that point I stated that I was no longer comfortable with this settlement offer and that I would have to think about it." So there is that.
To be fair, Max Johnson seems to be open to answering your and "Jess" repeated questions posed to him, even though it seems you aren't genuinely wanting a reply and just result more questions. That is something to his credit and TCR founder seemed remised in explaining (in a great PR move) what agreement there was from the beginning. He, as advised by lawyers, will most likely contend "certain" information of the suit would not be commented on due to an on ongoing litigation. That information could vindicate The Color Run or prove Mr. Johnson's case. We will not find that out.
If you read the full explanation (at least from his side) is that they made an offer then pulled out portions of it. It is unknown if the following conversation is truly the first contact and if there we not later revisions to the agreement. It does show the TCR's intention to only use the photos on their site.
Even if one isn't impressed with his photos, as company entered into an agreement with him and need to honor that. If they didn't, then the recourse is the law if they fail to settle. You also do not understand nor have experience litigating in the US, so your opinion is through a different lens. It is vastly different then in Australia or Canada.
he still still get credit for the pictures that he took.
What???
god damnit. i fixed the typo lol
everyone knows there are his for now...
There are three sides to every story, the left, right, and somewhere in the middle (usually), the truth. If TCR asked to use his photos from Miami for their website and they would give him credit but failed to do so, they breached their contract with him. With the photo now being used by commercial ventures still without the photographers permission, there is another breach and more than likely TCR is profiting from a photograph they do not have permission to use because of the breach. I would like to see the organization's financial documents and any proof they have that the photographer signed over use to that photograph for all purposes.
none exists.
What he's asking for is not unreasonable considering the massive campaign his photos have been used in with no compensation to him. On the other hand, Max needs to tread diplomatically if at all possible. He may end up with $300,000 and a black mark on his name-- but he is a champion for the creative professional if he was not given his due.
thanks.... max's dad #tymax
Snyder COMPLETELY ignores Jackson's allegation that his image was used above and beyond the original agreement. He first suggests, as I read between the lines, that Color Run was generous in giving him a job and he was an employee. Not in the capacity of photographer and the image's use is outside the scope of that employment.
Then he paints Jackson as an extortionist.
As a photographer I've seen companies do a lot more with an image than they agreed to - someone in marketing just uses it as it's on the hard drive. they don't have access to the agreement or often the photog's name.
Unless Jackson signed over the copyright he owns the image and deserves compensation for it's use. There are industry accepted methods for determining that value.
And if Jackson registered it with the US Copyright office he's entitled to punitive damages as well.
this is why we have courts, do determine the truth and conseqences.