![[UPDATED] The Color Run Sues College Photographer After He Asks for Compensation for Image](https://cdn.fstoppers.com/styles/large-16-9/s3/wp-content/uploads/2014/02/The-Color-Run-sues-college-photographer_jpg.webp)
[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.
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?).
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.
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]
This isn't about a straight invoice for an image, this is about the value of the violated copyright of the image. If copyright law stated that stolen IP damages were equal to the quote of a front-facing deal, companies would totally ignore licensing agreements and just hope to not get caught, because "oh well, we would have spent the money anyway." They are much, much higher because it's supposed to be a deterrent to that kind of thing.
This is exactly it. He allowed them to use his photo for free on their facebook page, so its totally believable that someone in Color Runs media department grabbed a few images without doing the proper research and used an image in print without consent. Color Run is in the wrong, but what do you expect them to do when someone says "meet all my demands or else you will be sued!" Threats are a sure fire way to tear down any lines of communication, and in this case, I think he got the response he deserved.
I think what you meant to say was, "If Color Run had thought for a second they would be caught trying to steal someone's intellectual property, they would have tried to steal a different picture"
I know its popular to imagine the big corporation scheming on how they can steal money from all the little guys in the world, but in this case, I really believe it could have been a simple mistake. When I heard about this, I thought I was going to read an article where Color Run was browsing the web, found a nice picture and just decided they would lift it and use it without even trying to contact the photographer, but that's not the case here.
Jackson was contacted, and he allowed Color Run to use the photo for free on their facebook page. This doesn't mean they have the right to use it for other media, but it does mean that its a lot easier for a clueless person in their media department to select an image they were already using to mock up some high profile ads. One thing leads to another, and the image they have no rights to gets used in a huge campaign.
This doesn't make it acceptable, but this case in particular just doesn't seem like a company saying "lets just steal some image off the internet for this add! Screw all the photographers out there!"
So, if they thought for a second they were using an image without having the rights to it, I'm sure they would have contacted the photographer to negotiate rights, or picked an image from one of their in-house guys or with rights that were known.
If it was a big mistake it's on them to own up to it and try to find a resonable settlement. You did something wrong, and emotions are likely going to be high. You caused the guy damage by your act and if you can't find a resonable settlement due to the heightened feelings the next step is to allow the victim to go to court or offer arbitration in order to have the judge or arbitrator fix a resonable amount. What you don't do is issue a SLAPP lawsuit because you were wrong.
I think there is every reason to believe it was a simple mistake, and I agree that a corporation like coca-cola being involved is clouding people's judgement.
As a business who uses IP without paying for that's a liability you open yourself up to. Someone caught them with their pants down and tried to make them pay.
If they paid for licensing they wouldn't be in this situation because they'd know their liabilities before using the photo.
You're confusing punitive damages with a quote. He doesn't think the image is worth 100,000 dollars, he thinks the violation of his copyright in that scope is worth 100,000 dollars. And given court history on the matter, he's absolutely, 100% right. Massive, categorical difference between that and what you're talking about.
On the other hand, the sponsorship crap is nonsense and could end up hurting him even if he wins the case.
You're right, and taken by itself, the $100k might be a good number to sue for if he contacted them without threatening a suit first and they brushed him off or told him they didn't have to pay or gave him some other condescending attitude.
When in the same context as his other demands, it just seems like he came up with a outrageous number. Punitive damages are certainly called for if it seems like the company was willfully stealing photos and laughing at the photographer when they asked for compensation, but by all accounts, this looks like a mistake of using a photo for a campaign after they were only given the rights to use it online.
I'm curious why you think $100k is "crazy" money. It appears these photos were used on billboards, mailers, press releases, marketing materials, and print advertisements. That does not seem like "crazy" money for photos used across so many platforms and which appear to have been a key part of their marketing campaign.
I think what put me in that mindset, and what probably rubbed Color Run the wrong way is that he not only wanted 100k for a photo that he previously let them use online for free, but he wanted more recognition than a huge corporate sponsor like Chevy. And again, maybe the photo is worth 100k for as much as they were using it, but you don't confront them with a bunch of demands and say you're going to sue because your "doctor father-in-law" told you too. So, that's why I say $100k is crazy.
100% correct. What is insane is how someone with a brain can't understand such a simple reality/concept. No wonder universities use standardized test scores to weed out those with dead matter between their ears.
100K is NOT absurd when you think about WHERE the image was used and by whom. In fact the only ridiculous thing about it is that he should have asked for MORE!
IF the Color Run had have asked to pass on the image, they would have known up front what the costs would be. It is their fault for using the image for other purposes other than what was originally stated.
You can't walk into KFC, order whatever you like, and then tell them the money they're asking is absurd and that you will sue them.
Why should a photograph/s be any different?
The Color Run SHOULD have known better. If not, the money they're spending on trying to get out of this case would be better suited to hiring a PA.
But it is LEGAL to be insane. It is also very acceptable to ask whatever price you want to ask for your work; you might not get paid your asking price and you might get laughed at, but there's nothing wrong with simply asking… no matter how silly the request may be.
There is something legally, and fundamentally wrong with stealing, if that is indeed what the Color Run did.
Citation please?
Damn Maxwell for not limiting his value to your liking.
He also gave them permission to use the image on their Facebook for free and Im sure somewhere along the line someone working at the company grabbed it not realizing they didn't have full rights to use it elsewhere and it ended up getting included in the selects.
That doesnt give him the right to demand $100,000. Thats just ludicrous to assume he can demand that much plus sponsorship spots. I totally agree with you Jon B. This kid is an idiot and he is going to learn a very expensive lesson.
He should have started out by not being greedy and making stupid demands and maybe they wouldnt have responded in such a harsh way.
What bothers me is that all I keep seeing is college student sued by big bad corporation after they stole his images! followed by the alleged statement that Color Run would rather spend $500,000 in legal fees than be extorted and everyone says "oh wow thats balsy, they claim they are being extorted after stealing his image!" When you see the demands they are making you will see that its not actually that outrageous that they would rather spend the money on lawyers than have some idiot kid try forcing them to pay him so much money for one image.
For $100,000 plus sponsorship status they could have hired any major advertising photographer to shoot any one of their events and had more than one image to use.
Hell, I will do it right now. It doesnt even need to be at an actual event. For a $100,000 budget I will stage one of their events for the photos.
http://thecolorrun.com/689-2/
Eh, the 100,000 dollars is aggressive, kind of, barely, but it's not insane. Jay Maisel got 90,000 dollars in damages in a fair use case over one of his images, and that defendant was a non-profit. These rates are punitive and for good reason. The other demands, well, those are rookie mistakes: Who in their right mind would want to work a client held at gun point? That sounds like a living nightmare.
If he lawyered up right away, he could have started with 100,000 and probably negotiated down to 65,000 out of court, and that's if things remained nasty. If they wouldn't budge, I'd see the in court for the original 100,000.
Even if $100,000 wasn't outrageous, he upped it to $300,000 over the course of their discussions. Add that to the fact that he made the other insane demands like being made the official photography sponsor for all of their events for as long as they are a company and you can really understand why Color Run took the action they did. This idiot really was trying to extort them. He thinks he is entitled to $300,000 plus all those other demands for one image that he gave them partial permission to use for free in the first place? Thats just greed pure and simple. If he wanted to continue a working relationship with Color Run he could have started by negotiating reasonably and asking for an amount that wasnt insane, and working out a deal to be paid to photograph their events going forward. No reasonable company is going to want to work with some kid who is clearly immature and unprofessional like that.
I get the feeling that this kids friends and family have also seen the dollar signs and gave him some very terrible advice.
This idiot lost my support when I saw his demands. It got even worse when I heard that he tripled the dollar value of those demands after the fact. His photo isn't that great. Its not worth $300,000.
For $300,000 I will fly to any future Color Run and photograph the living hell out of that thing for them. I will even pay the expenses myself.
I didn't say he was a good negotiator, going up to 300,000 dollars was what happens when you have a young guy without a lawyer to advise him. Also, the demands outside of the money are flat out bad ideas. You're right in that he's basically making himself toxic in the industry by asking for those things. I probably wouldn't have gone for 100,000 dollars, but again, there's very real precedent for that kind of punitive damage. Now, I don't know the specifics of what you're entitled to legally depending on the registration status of an image with the US Copyright Office, but if they WERE (they are not) 100,000 dollars would have a pretty solid chance of being awarded in court. This isn't about what's reasonable to charge a forward-facing client, this is about copyright violation, and those fees are much higher, because they are a deterrent against breaking the law.
My support for Maxwell isn't about supporting him personally or the specifics of his decisions, it's about a company needing to follow through according to the law, as an example to other companies who decide to play fast and loose with photographer's property.
Exactly. I'm not upset that Jackson is trying to get compensation for his photo that was used without permission, and I'm not trying to say that Color Run was somehow justified to use the photo.
I just get upset about articles like this that are clearly slanted to one side. I know this is a photography website, but its a bit sensationalist to make it seem like Color Run is suing the guy after they willingly stole his photo. Cases of companies stealing photos without a second thought do happen, and I like to hear about them getting caught. I just see this as a case of a big (and I guess, somewhat disorganized) company making a mistake, a guy making huge clams and threatening to sue "because his dad said so". Color Run is suing because Jackson's over-the-top demands put them in fight mode. If Jackson would have pointed out that they used his photo without permission and asked to negotiate a fee, we never would have heard about this.
Their conduct appears to have been willful, they took advantage of some amateur when they knew or should have known better, and when called on it they filed an infringement suit against the guy. Their and your campaign to make the injured photographer out to be the bad guy here is gonna be a hard sell to any judge. Good luck with that. They should settle, and quick. This conduct is the stuff of awards of full statutory damages (assuming he timely registered his copyright), which would likely be as high as $150k multiplied by the different types of uses (retail, promo, international by country, etc.). If he didn't register the copyright, they'll be able to bury him tactically until he runs out of money or will.
Register your copyrights, they only cost about $35 and are quickly registered online.
What he 'asked for' is entirely different from what the judgement will be.
He gave them permission to use it on their Facebook page. But to later see it in corporate campaigns.. unrelated to the original use, makes it a horse of a different color, 'pundamentally' speaking ;)
- I had a photo of mine (I am an amateur, and do not sell my shots) used by Sunset.com in their Top 100 vacation photographs. I happened upon it while scrolling through the post to admire the pictures... I saw mine and thought 'Wow, that person's photo looks a lot like mine!', then saw my name in the photo credit.
I was flattered, to say the least!
I'm sure if Color Run would have 'purchased the rights' in the first place for even $100., it would have felt great to a budding photographer.
They should have known better. They are wrong, no matter what the 'demand' for compensation.
Have you thought about starting a Change.org petition backing them into a corner and forcing them to change their policies? The GoFund me is obviously necessary for financial reasons but a petition will literally spread like wildfire because they are such a big name. I would consider it. One woman got Bank of America to change their policies on fees because of a Change.org petition. :)
You should reduce the donation amount . If you force everyone to give you a minimum of 5 bucks it will take forever to raise the amount pursued.
I was one possible donator.. and couldn't donate because I didn't want to give more than 1 buck.
What do you prefer ? 2 donators that might give you 10 bucks in 2 months?...
or 10 people that might give you the same amount in 2 days ?...
Max, did you register the image yet with the copyright office? Get on that now if you haven't.
Also shared on various social media platforms... good luck.
That helps, but is not required.
Max, are you open for interviews?
You should consult a copyright attorney about who has the rights to those pictures, but as far as you being compensated for them, if you are indeed the rightful copyright holder, then you should be going after the companies that misused them. And in such a case that color run told coca-cola that they could use the pictures, then coca-cola uses them while you are the rightful and exclusive copyright holder - you go after coca-cola. coca-cola at that time can seek damages from color run, but it was coca-cola that violated your copyright, not color run.
Actually if memory serves me correctly, if the Color Run sold the pictures to any company then they did so illegally and are the ones at fault. I'd go after them all though.. By going after Coco Cola, he will have more of a chance because Coke has more power than the Color Run people and can put the pressure on them to do the right thing.
My understanding from having written in this field for a long time: Coke likely thought they were buying them legally from Color Run, and I'm sure that coke's contracts with Color Run indicates that Color Run owns the rights to all the images they're providing to Coca Cola. Their contracts will likely specifically say that any infringement rights are the fault of Color Run.
>You should consult a copyright attorney
Good idea.
>t it was coca-cola that violated your copyright, not color run.
Right, Just like if I rob a bank and then buy something from you with that cash, YOU are the person who is legally responsible for the robbery despite having no knowledge.
I think what you are referring to is the receipt of stolen goods. Another way to look at this is if someone steals a car, the person who buys it commits a federal crime in purchasing the stolen car - not for the theft of the car, but the for the fact they now have in their possession a stolen good.
So yes - go after Coca Cola Corporation, they then need to "return and reimburse" Jackson, and subsequently they then in turn can take action against Color Run.
[Note: none of this should be considered legal advice]
It is not remotely the same thing. Coke is now using his property illegally as well. Remember possession of stolen property is illegal. If you give that money to someone then they can get in trouble too, especially once they know it is stolen. In this case Coke would attempt to make this right to cover their own butts, more than likely forcing the color run to correct it to keep themselves from looking bad.
That is not even a semi-close analogy. If my buddy hands me a picture that you hold the copyrights to and tells me I can use the picture in my advertisements, you don't have a case against my buddy.. he didn't copy them, I did. But I can sue him for damages from you suing me.
That's fraud. If you have a resonable expectation of your buddy holding the compyright to a photo and he grants you the right to then he can absolutely be 'on the hook'.
No,
it is not illegal to accidentally possess a stolen good if you had no
reason to believe it was stolen. However, it certainly might be
confiscated by the police and returned to the rightful owner. There are
slight differences in how this is interpreted from state to state, but
here is a typical quote from WA state law:
"'Possessing stolen
property' means knowingly to receive, retain, possess, conceal, or
dispose of stolen property knowing that it has been stolen"
(from http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.56.140)
I was trying to use an analogy to demonstrate how ridiculous it is to
"go after coca-cola" when Coke had no reason to believe there was any
problem. They were given a number of photos by Color Run and told to
use them.
Now, if Coke continued to use this photo after they
were told it was legally in dispute then there might be a case, but
that doesn't appear to be this situation. And perhaps by "go after
coca-cola" you meant to politely inform them there was a mistake
regarding the copyright for one of the photos and it should be taken
down.
This appears to have been a clerical error on the part of
Color Run that has blown up out of all proportion. A photo got added
to the "cleared for use" pile that should not have been.
Maxwell really should go after coca-cola. Coca-cola should know better with things like this, and see signed notarized copies of contracts prior to using anything whose copyright could be in question. And any judge will favor that. Furthermore it will have stronger consequences to color run than if maxwell went after color run instead. He probably doesn't have a solid case against color run on this count alone and coca-coloa can break ties and bring litigation to color run that maxwell himself cannot.
Unless you are a Copyright Attorney you should limit your advice to
"You should consult a copyright attorney."
His ownership of the copyrights to the pictures in question may not be cut and dry, unlike the liability to coca-cola if they used them in violation of said copyright. The latter is that - cut and dry. No need to ask an attorney about it, but if it fancies you, then by all means.
It looks like it's probably very cut and dry here. He posted an image. They saw the image. They sent him a public post (screen shot above) to solicit his images for a specific single use (FB) and with specific compensation (the free publicity). He would have sent the image(s) to them (the referenced transmission receipts in the article). Then they probably said something like "thanks a lot!"
Can't get much more cut and dry than that.
unless they try to argue that since he had his facebook on "employed by Color run" that the photo would constitute a work for hire. this would mean that color run owns the copyright and he has no claim to his work. Since thats the update they sent him, it is most likely why they feel they have grounds for a case. if this goes to court it will set a ridiculous precedent.
problem is that was after the photos were taken. When you start working for someone they do not retroactively gain ownership of your copyrights.
I posted to their timeline and my own. I'd encourage you all to do the same.
I posted and they deleted it, and then they blocked me.
This isn't just happening to you. It appears to be their present strategy. We have reached out for an official response from them. We'll let you know if anything happens.
Just posted myself, lets see how long the post last! lol
And its gone lmao
Yeah, just happened to me too. They're quick! I guess that's what you have to be though, when you're a thief and all.