[UPDATED] The Color Run Sues College Photographer After He Asks for Compensation for Image

[UPDATED] The Color Run Sues College Photographer After He Asks for Compensation for Image

[The Color Run and Maxwell Jackson have come to a joint resolution since this article was published. For more info scroll to the bottom of this post for links to their site which has up to date posts on the entire situation.]

"The Best, the Biggest...The Happiest 5k on the Planet" is how the Color Run likes to describe itself to its 2.6 million Facebook fans. But don't let that fool you. The company is suing 21 year old photographer, Maxwell Jackson, because he claims they used his photo illegally. Say what?

Jackson went to one of The Color Run events in Miami in 2012 with some friends from his photography club at Florida Atlantic University, where he is still a student. He photographed the event and posted the images online. He was then approached by Scott Winn, who identified himself as the Photo Director of The Color Run. Winn asked Jackson for permission to use his photos on their Facebook page and said that they would even give him "photo credit wherever (his) photos are used." As a new photographer, Jackson felt this would be a great way to get some exposure. "I was a new photographer and this amazing new company was offering to feature MY photos on THEIR page!" Who would have thought that would take a tun for the worse.

color-run-message

July of 2013 comes around and Jackson is walking around a Sports Authority in King of Prussia, Pennsylvania (no where near Miami) when he was actually handed a flyer featuring HIS photos. On top of the flyer having his images on them without his consent or knowledge, The Color Run did not even give him credit for taking the pictures. Jackson even stated that they are still using his photos on their main websites, such as TheColorRun.co.uk, and even more international sites. Not cool (or legal?).

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The photos have also been featured in the U.S. News, Baltimore Sun Times, and by companies such as Coca-Cola. "There are thousands of individual websites all over the WORLD wrongfully using my photos as provided by The Color Run."

Jackson contacted The Color Run to try and receive compensation for the misuse of HIS photos. He instead received a response from Travis Lyman Snyder, owner and founder of The Color Run, which said he "would rather spend $500,000 on lawyers than be extorted by (Jackson)."

On top of that, according to Jackson, Travis Lyman Snyder filed a frivolous trademark infringement lawsuit against Jackson in Utah Federal Court, where The Color Run is centrally located, to sue him into submission. Jackson and his father worked "pro-se" (without a lawyer) on the case at first but then requested counsel from the state of Utah. On December 23, 2013, they received a letter that said their request for counsel was approved so now the clerk of the court would be finding Jackson a lawyer.  You can view the full filling here

"I now have pro bono counsel, which means I don't have to pay lawyers hourly for their time, however, I still have to come up with between $50,000-$100,00 in fees connected to standing up for my rights. These fees are expenses tied to the case, such as expert witnesses, copies, postage, stenographers, depositions, travel expenses, etc... Without this additional funding, The Color Run and their deep pockets will get away with infringing on the copyright and stealing my artwork."

As a college student, Jackson says he is already in debt with loans and there is no way he could come up with the money to fight this case along. He is asking for donations on his GoFundMe campaign to help raise the funds for this case.

UPDATE: Jackson reached out to me and gave me the reason for him being sued by The Color Run.  Here is what he said.  "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."

What are your thoughts on Jackson's situation, and how The Color Run handled the use of his images?

We have reached out to The Color Run for an official response and will update if and when one is received.

UPDATE: It appears many upset readers started commenting on their Facebook wall. Rather than attempt to delete them all (which was their initial move), The Color Run has just removed the ability to comment on their Page.

UPDATE: 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.

LAST UPDATE : "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"

[Images used with permission from Max's Photography || Original Story Via Max's GoFundMe Campaign]

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460 Comments

Paul's picture

Shouldn't have let them use the image in the first place. It's a harsh lesson most new photogs go through. Use an agency or charge a fee. Lesson learned.

Jason Vinson's picture

letting someone share your image on their facebook page is far from allowing them to use the image across the internet and printed advertisements.

greg tennyson's picture

If a business wants to use my image at ANY capacity I charge them.

AdamB's picture

Yeah, allowing Facebook sharing or not, won't necessarily stop someone from using the image in all of the places it's ended up

Paul's picture

Unless you read the small print, you're allowing them to do what they like. Thats why i use Alamy

Adam Gasson's picture

Not really, he has in writing the terms of use and gave permission for that use only. Unless he's agreed to extra use at another time (and hasn't told anyone about it) Color Run has used the image outside of the permitted terms. Even if he'd charged a fee for the Facebook use it wouldn't entitle them to use the image elsewhere.

The only lesson to learn is to licence correctly and thoroughly. But an image without a licence does not give someone free reign.

Maxwell William Jackson's picture

I was naive and thought that this wouldn't happen to me, clearly it has and based on that I have already learned a priceless lesson..REGISTER YOUR PHOTOS!

Lando's picture

Max, quick question. Why don't you mention, in the story above, how you worked at several of these events? You give everyone the impression that you were just some guy who was randomly taken advantage of by a company?

Sad how many people are taking your one sided story and totally jumping on this company.

agour's picture

absoloutely sickening that such a large company is willing to counter sue rather than just paying out what they owe..

Gee M's picture

Thank you Brenda for the clarification, Regina

Dena B.'s picture

Totally agree.

Shane's picture

I think they would have been a little more open to the idea of paying him if he didnt demand $100,000 plus being added as the official photography sponsor for as long as the company exists, as well as having his logo added to the sponsors page next to the Chevy logo.

I think this guy got greedy and Color Run reacted the way they did as a response. I dont agree with the fact that they are suing him, but I equally disagree with his ridiculous demands.

Lets get real here. They used one image. There is no way in hell it is worth $100,000.

angel's picture

You obviously have no idea what you are talking about.

David Schloss's picture

Actually $100,000 for a multiple-instance copyright violation that they have knowingly committed in their media campaigns, via point of sale materials, via their PR sites and via their marketing department is not high at all.

Default judgment cases for copyright infringement is much higher in many cases that go to trial (otherwise they wouldn't have set a half-million dollar threshold for lawyer retention.)

Essentially each use is its own violation. Because they offered to use his work on FB, they can't claim orphaned work.

They know how copyright works and they willingly violated it multiple times. That's worth at least $100,000 based on existing case law.

Jaek Farley's picture

Quite right. That's why you hire photographers and buy the rights to the images up front. Asking to be listed as a sponsor is totally reasonable too since they've gone to such great lengths to use his image without permission or giving him recognition for it, it would simply be recognition compensation for the countless people that have viewed his illegally used photo.

jimphoto's picture

they stole. they are crooks. and they think being rich enough to have lawyers makes it ok. and yes, that price is not high for a national campaign.

Shane's picture

No. Lets be honest here. They used one photo. They didnt hire him to shoot a national ad campaign. If they wanted to spend the $300,000 this guy ended up changing his demands to, they would have just hired someone to shoot a campaign for them.

They used one photograph that they mistakenly assumed they had permission to use given the fact that he did give them permission to use it elsewhere.

They made a mistake and when he told them he wasn't paid they tried to offer him reasonable compensation and he got greedy and started making ridiculous demands.

$100,000 might not be outrageous for an entire national ad campaign but not for the use of one single image that was taken by some amateur photographer at one of their events.

Even if the money wasn't an outrageous amount that he ended up tripling as time went on, all the additional demands he made like being named as the official photographer for all Color Run events globalls for as long as they are a company plus his logo being placed among all the paid sponsors? Get real man. This kid is a joke.

Im a professional photographer and I have worked on many national ad campaigns. This kid is asking for way way way too much. He got greedy and now he's going to get screwed.

I think his whole gofundme thing is just a cheap cash grab as well. If he had such a solid case and was entitled to $300,000 in damages Im sure any lawyer would be happy to take on his case. Unfortunately anyone with half a brain can see that he is a greedy idiot and he is going to lose.

He saw dollar signs and acted like an immature child with no experience in business whatsoever. He could have so very easily turned this into an ongoing business relationship where he was paid well for shooting future events. Instead he pops off at the mouth and makes ridiculous demands. He really was trying to extort them. There is absolutely no way a company like this is going to drop $300,000 to use one single image. This kid needs to grow up and stop being so stupid.

Sorry man but you are definitely wrong. Color Run tried to make a reasonable offer and he got greedy. End of story.

James Gay's picture

The company didn't "make a mistake". A company like that has a person in charge of knowing how copyrights work, and how they can avoid infringing upon them (you know, to avoid profit draining lawsuits and publicity scandals that are the bi-product of them). They knew precisely what they did. If anyone got greedy, it was the company. They approached him to use some of their photographs on their facebook page, not using them in an ad campaign in retail stores and across multiple countries.

Just because you typed a 15 paragraph essay doesn't mean you know what you're talking about.

Royalties for music and images created by a person and owned by that person aren't given a set figure in any instance. The artist that created the content can technically charge whatever they want for it. For example, if an artist wants to sample another artist's song in one they're working on, the artist who's song is being sampled can name ANY price they want, and that's just what it comes down to. They created the material, and they know how much it's worth to them. The same goes for any type of artwork in any field.

There's no law out there that says "oh well it's just one picture, so it's only worth 'x' amount of dollars". It just doesn't work like that, and you're plain wrong in your assumption.

Shane's picture

Generally speaking, if the musician is trying to charge a much higher price it is usually because they are well known and therefore the art they have produced is worth more. When you are just some kid who happened to luck out and take a few nice snapshots you don't suddenly get to turn around and start claiming your "art" is worth $300,000 plus all the other bullshit this kid was demanding in return for the use of one image.

This kid made a huge mistake by clearly not consulting a lawyer before making his silly demands and it is going to bite him right in the ass. Even if he had a slight chance of getting $100,000 for the use of his image, he screwed himself over by making all those other outrageous demands and all he has managed to accomplish is severely pissing off a huge corporation with very deep pockets, as well as making himself look greedy and stupid.

Even if he tries to sue Color Run he has already shot himself in the foot by acting so unprofessionally thus far.

Justine Rumbel's picture

It sounds like "just some kid who happened to luck out" is making you - a fellow photographer - jealous. I find it odd that you would consider his demands silly. Do you take your photographs and the time you put into it seriously, or is that also just 'silly'? I also find it odd that you would take the side of a for-profit 5K Run company (any other 5K I've heard of/been in is non-profit and benefits some charity, research, or individual in need) as opposed to a poor college student trying to work toward a career in the arts. You'd think if Color Run would want to support any cause (aside from "happiness" - um, sure…), it would be something like that. But if you want to throw dollar signs around, consider the amount of financial damage they're doing by losing any lifetime value of people in their target market segment who have Facebook, are reading about this, and are now pissed off: college-aged individuals who run 5Ks and have lots of other options for doing so. If anyone has shot themselves in the foot, it's Color Run at this point.

Shane's picture

Im not jealous at all. I make very good money doing what I do and I handle myself very professionally and don't make outrageous demands.

Do you really think this will damage The Color Run at all? Look at the way social media works these days. By tomorrow you will barely see anyone posting about this story. In 3 days it will barely be even a blip on the social media radar.

I think you are drastically underestimating the power of social media these days. Quickly, what was the name of the woman who made the horribly racist joke on Twitter before flying to Africa? Don't google it. I bet you cant even remember anymore.

The next time The Color Run sets up one of their marathons there might be a tiny murmur from people who now think they are awful villains but realistically this is not going to hurt them even slightly. Social media has absolutely no power because everyone using it is just desperately searching for the next big thing to talk about and there is no way in hell something more interesting isnt going to come along in the next 24 hours. Give it a week and no one will even remember this kids name.

Brenda Reagan's picture

Guess you were wrong.....a week later info still plastered all over the place on social media...https://www.facebook.com/thecolorrun

barque's picture

Shane, price on something like this is based on use, not based on it being "just one image." The idea that this is just a lucky snapshot from an amateur doesn't diminish the fact that this one image was chosen for a multi-platform campaign. The image is one the company decided to commercially use nationally (internationally actually). That's thousands of uses, high visibility, lots of eyeballs. That's where the use rights value is.

Shane's picture

Im going to be honest with you and tell you that I just do not care. I don't even remember this kids name anymore. He is a nobody and he will always be a nobody. No one will want to work with him after this. Im just not interested in this story.

barque's picture

I'll just be honest with you and tell you you sound like a blithering idiot. Your comments indicate you don't understand copyright and usage compensation for commercial use, although you claim to have licensed a lot of images professionally. Your attitude makes it pretty clear you just sort of make this up as you go. If you don't care, stop commenting.

Shane's picture

I had stopped commenting but then my damn email kept notifying me every time one of you guys replied to my comments. I know more about copyright than you do. I have sold images. You have not. This will be my last reply. Im guessing you will insist on replying to this comment but I can assure you that I will not be reading it. Goodbye.

barque's picture

LOL, I don't care if you read this, Shane. As long as those who read this can understand our conversation I am satisfied. So to your point, in fact I have licensed lots of images for commercial use on many platforms, so I do indeed know what I am talking about. Uses from product packaging to editorial use in magazines. And print advertising, banners, posters, even CD cover art. Your ignorance is showing if you just assume. And the term is not "sold images," it is, "licensed image use rights." My opinion of your knowledge is not based on knowing whether or not you've "sold" images. It is based on your ignorant comments about it being "one image," a "lucky shot." You obviously do not know more about copyright than I do. Not by a long shot, my friend. Like I said, you are making this up as you go. But in any case, goodbye to you too.

jimgleaves's picture

James, I don’t mean to pick on you individually, but you and
many others made comments such as “The company didn't ‘make a mistake.’” And that “They knew precisely what they did.”

Please note the current official update which states “We both had a genuine misunderstanding about the terms of our agreement.” Based on this it’s fair to say it most definitely WAS a mistake, and no they did NOT know what they did.

I am pleased that both parties were able to have a “respectful
and ethical discussion” about this and it was resolved without litigation.

James Gay's picture

Also, just to make something clear, he doesn't think the image itself is worth $100,000.

Lawsuits don't just cover the dollar amount of the individual material that's in question.. He has to cover his legal fees and other punitive damages. That's obviously included in that sum, and probably makes up a majority.

Shane's picture

No that is not true. He demanded $100,000, plus being made the official photography sponsor for as long as Color Run is a company, plus his logo being added to the corporate sponsors page next to Chevy (his words), then upped it to $300,000. This was all before threatening to sue them, so he definitely does think the one image is worth $300,000 plus the dollar value of what all of those other demands would be worth.

Correct me if Im wrong here but doesn't Chevy pay Color Run money to have their logo included on the website as a sponsor? Why in the hell would Color Run ever want to work with this kid again? Let alone list him as a corporate sponsor and official photographer for the rest of time.

I am in no way saying Color Run was in the right for using his image without permission. I am a photographer myself and I would be quite bummed out if that happened to me, but I wouldnt be stupid enough to start demanding any of the ridiculous things this kid started asking for.

If he had started out by saying he wanted $100,000 and credit for his work if they were to want to continue using the image or he will be forced to take legal action there is a really good chance they would have accepted. Color Run's response, which I also don't agree with, starts to make a lot more sense when you read their side of the story and see how greedy and unreasonable this kid is.

He really should have consulted a lawyer and tried making some reasonable demands. Starting out by asking for $100,000 plus everythng else, then upping that dollar value to $300,000 is just not the type of thing a reasonable person does.

I get the feeling that he arrived at his original dollar figure at complete random and just assumed that because they already used the image they would have no choice but to pay him what he wanted. I also get the feeling that he upped that amount because he told some friends and family members about the situation and they all saw dollar signs and encouraged him to raise the amount because they have no choice but to pay.

The things that bother me the most about this kid is the fact that he tripled his dollar figure, and demanded all of those other insane things along with the money. Did he really think that Color Run would ever want to work with him again after this? Why the hell would anyone in their right mind want to continue working with some kid who just threatened to sue them if they didn't pay him $300,000 to use one image?

I have said it before and I truly believe that this kid screwed himself over with his demands and he is going to learn a very expensive lesson here. Im sure he could have easily received $30,000-$50,000 in this situation but he got too greedy and now he will be lucky to get anything other than the donation money all of these misinformed supporters are giving him.

Eric B's picture

From the U.S. Copyright Office, "Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed." - that's each violation (if you make 20 copies that would be the damages x 20). This was obviously willful so the 150k amount or something close to it would be used most likely. Seeing as this has been copied numerous times around the world and by a number of national/international corporations, $300,000 isn't an unreasonable sum.

The other question that needs to be asked is how much the "non-profit" received by licensing this image. Remember a lot of non-profits actually are created to make the "owners" nice profits, ie: salary for running it, giving very little to the named charity. I've seen some that gave as little as 5% or couldn't show any giving at all. Always check a non-profit before sending them money.

You may have worked on national ad campaigns but that doesn't mean you were paid well doing it - not trying to insult, I just know the market these days. Also, if this was used in other countries it is international usage which is paid at a higher rate than national campaigns.

I will say that the photographer didn't seem to have his "ducks in a row" prior to going to the company. It would've been a smarter move to talk to a copyright lawyer first. (S)He could've made clear what reasonable compensation would've been - might have been $10k, might have been $100k.There are a number of copyright lawyers that work with "poor" artists for free that would have helped. They can be found through organizations like ASMP.

I also don't get the "corporate photographer" request especially if he thought they were cheating him in the first place. A "we messed-up" statement would've been more in line.

Phrenzy Mcmillan's picture

I don't understand though how that adds up to the color run suing him! If they felt they had reasonable legal standing and were willing to pay a reasonable fee then they could settle it in court IF abs then when he sued them. I don't underrate vs what about this opens him up to a law suit, greedy or not.

The Brothers Wright's picture

Shane obviously knows less about copyright lawsuits and licensing of stock imagery for unlimited use in national campaigns than he would like us to believe. Glad you feel you a successful photographer working on national ad campaigns but you at seriously talking out of turn. You are not a lawyer, you obviously have not been advised properly on current rates for image licensing, and you have to look at this as a large company stealing a sock image and using it as if they had a full buyout or unlimited licensing. Really... How much do you think the image in question should be valued at for the use Color Run assumed if it were purchased from a major stock photography company?

agour's picture

Actually I agree, but my original comment was posted before the update :)

100k isn't so unreasonable for a copyright breach, and what they used it for. Everything else that he asked for was completely stupid though and there was no way they'd ever agree. As soon as I heard those demands I was like "oh what an ignorant kid".

A.N. Bayat's picture

He did not ask for 100,000 for his photographs. It says that he owes that much in attorney fees. If that image is generating that much and used that much an image can be worth a lot if it's being used international marketing.

Gary Bridger's picture

Why that company just said OK :-0 We give you promotion and some income for your efforts, , That man need to be dealt with.

Jeremy Nielsen's picture

Wow. I was going to do the color run this year but forget it!
PS Spelling error in second last sentence.

Maxwell William Jackson's picture

There are plenty of other spin offs of The Color Run that you can run if you still think the idea is cool!

Thank you for reading though

Graham Marley's picture

It makes your blood boil, doesn't it? When you take a photo associated with something like this, register it with the copyright office. Then, even if it's a "Hey, you can just use this on social media." write up a contract.

This is one of those times when a good social media smearing of the color run would be pretty great.

Huckle_Cat's picture

Agreed about passing this along in social media. I followed this from a poorly-written FS tweet implying that Jackson was possibly at fault. Should read: "Color Run uses photo without permission and then sues photographer for holding them accountable." Because they *did* use it without permission when they used it outside of FB. If Winn had said, use it for promotional purposes, then Jackson would have been SOL.

Maxwell William Jackson's picture

Thankfully he used the words that he did!

Thank you for taking the time to read about my cause!

Graham Marley's picture

I do have a question. Did you name a figure when you wrote to them asking for compensation? I totally believe you're in the right, and maybe you can't discuss it with the case pending, but I'm just curious.

greg tennyson's picture

It doesn't matter if he asked for $1,000,000 and a private jet -- you can't just steal something because the price is too high.

Graham Marley's picture

Oh I totally agree, my question isn't loaded, I'm just totally curious.

Jon B's picture

Yes, he had a RIDICULOUS list of demands and a $100K price tag. That's why he's being sued - because he was totally unreasonable from the start.
Let's say Color Run's media department is pretty bad at what they do, and they used the picture without permission. That's wrong. But for this guy to DEMAND $100K and to have the same corporate sponsorship stats as Chevy, and to be the official photographer of the event is just insane.

greg tennyson's picture

You're allowed to demand whatever price you want for the products you produce. If it's "ridiculous" it doesn't give you the right to just steal it.

I think the price of medium format camera gear is absurd -- am I allowed to just walk out of the camera store with an HD60?

Jon B's picture

The difference is that he thought since he caught them in a mistake, he could demand a crazy amount of money. If Color Run thought for a second they would have to pay that much, they would have laughed him all the way back to Florida and used a different picture. The photog is entitled to compensation, but when you start demanding $100K and corporate branding and sponsorship, you better believe the other guy is going to lawyer up.

This kid isn't being sued because the big bad corporation wants to steal his precious pictures. It's because he didn't know how to handle the situation correctly.

Thomas Campbell's picture

100k for photos used in major ad campaigns by multiple companies isn't crazy money. That is fairly standard in the industry. A simple billboard often runs into the 5-figure range.

It doesn't matter if Color Run would have used a different picture if they knew this would cost them as much as it is. What matters is that Color Run decided to use someone's intellectual property without permission. When you screw up, you lose leverage. If they had asked him for licensing rates, they likely could have gotten a good deal and they had the leverage of being able to choose another photo. They lose that leverage when they chose to use the photo without permission.

That they filed a SLAPP suit is just beyond repulsive.

Darryl Bordelon's picture

Isn't this what happens when any of us "little folk" get caught by a large corporation making a mistake? Like having someone's copyrighted music misused? Or perhaps a small but of other IP owned by a large corporation?

Why should we treat the larger corporations misusing our assets any differently?

teila's picture

The same reason why little companies who invoice coke and other large corps don't spout off at the mouth when they are late paying invoices. It's not about what's right, but rather what's reality more often than not.

I think what Jon B is trying to convey is that Jackson's purported actions after they used his photographs were such that caused a knee jerk reaction for almost any business to kick into "fight" mode… when Jackson likely could've reached a better outcome by simply invoicing the going rate for the photographs used.

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