![[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]
What about the girl in the photo? Wouldn't they need to get a model release from her? Does she have any say in this?
That's true, but I wouldn't be surprised if the registration for the race includes a model release, especially since The Color Run relies so heavily on photos to promote themselves.
Yeah, I thought about that. I've done the color run, I'm sure I could look on it.
If a person is shot in a public setting, do you need a model release?
You can publish and sell (up to a certain point) a photo with someone taken in public without a model release, but you can't use someone's image in a promotional capacity without one.
Graham, what if a hate site like thedirty.com uses my images of myself, puts THEIR watermark over them, and allows people to run rough-shod over my life to the brink of me wanting to give up?
The best thing to do is ignore it and not care so much what other people say or write about you. You'll be a much happier person. Forget about thedirty and let people say what they want to. The people who care about you know you for who you truly are.
Thank you Veldask. and you are right. I think I lost a few friends on that, who instantly went over and friend requested the original poster and probably told her all of my thoughts on the matter. It bothered me for about a week. Now back to biz as usual :P
That's honestly a little harder. Those images are used as content and not necessarily a commercial. I know it sounds like splitting hairs, but these sites, which I hate, exploit an important right of journalism. Now, I've never understood why, say for example, a site like that posts a photo taken by a girl of herself, which is then her intellectual property, and can't be compelled to remove it. It's all very messy. Now, say the dirty started selling T-shirts with your likeness on it. THEN you'd have more of a case for a model release issue.
the other thing I forgot to say is that I am a model, actor, been in several commercials and movies. Whomever stole those pics off of my page, both pictures were taken with my cell phone.
I know it may be splitting hairs, but some photogs have said that photos as soon as they are snapped in their cameras, become their legal property. for thedirty.com to upload my pics, put their watermark over them, and get like 700 comments/10k page views roughly...they are getting a LOT of traffic and 'mileage' out of my image and the blatant slander/libel going on
and now of course, my former friend and the OP on the dirty, are now sharing it through fake profiles of their own on facebook. and my business name is in the OP on the dirty, and they are tagging my business name when they are posting it on their fake profiles. So it shows up on my FB business page when I am sleeping. I have them hidden for now.
Oh, I mean, it's not just the opinion of some photographers that once an image is snapped, it's their property. That's the plain wording of copyright law. But it has limitations, and some of those limitations are called fair-use, which sites like the dirty use to their advantage. It's a very weird, murky legal area. Whatever is happening to you sounds horrible, and I hope you get it resolved with some restitution. Best.
well he was hired to take photos of the event , so i believe the company can claim ownership
Editorial, fine art??? Dont need a release,.... Commercial??,...ya better believe ya need a release,.. This is a simple answer, but it is really more complex than i have the ability to explain effectively.
I'm pretty sure you do if they are recognizable. At least in the US.
If such a contract were indeed legally binding (an implicit release?), that contract would be between the event organizer and the participant. It would most certainly NOT be between the actual photographer in this case (Jackson) and the participant (the runner/s here). Since the independent photographer owns copyright, not the organization, the photographer would be responsible for obtaining a model release from the participant before commercial sale.
Unless you're saying that in the small print on ticket that the event organizer implicitly claims copyright and ownership of all images taken by all photographers at the event. Not likely.
Often as part of the running waiver it includes wording to allow images for promo of the event.
It's just a guess, but I'd bet they have some standard release in the agreement you sign before you run.
I believe permission is given in race waivers that their photographers are allowed to take your picture and then use it for promotion materials... However, the photographer in this case was not sponsored by the color run... he was simply a spectator taking pictures... I do not believe the waiver covers it in that case.
Yeah, good point. I wonder if she's even aware of all this...
I am a sports photographer too and I can pretty much assure you that the person in the pictures does not have any legal interests in the copyright of the pictures taken.
It is a gray area. Something that I found interesting the times I shot (just as a spectator) at Nascar, the ticket back has the copyright on it for all images captured at the event. Where it is their event, they could have a similar term in place at these events at least in terms of owning likenesses of people participating.
For any commercial usage of the image it would most certainly be the individual photographer's responsibility to obtain a signed model release from person/s in the image, and the photographer would have to provide proof of the release to any paying client. This would be the responsible behavior of a professional.
I strongly suspect that a blanket release provided by the organization holding a group event that implicitly binds participants to the terms of the release would likely not hold up well if the persons in the image were to litigate. It might work for distribution of images across social media and for self-promotion (by the photographer), but not for commercial usage such as what happened in this case.
It has been a while since I read up on that, but off the top of my head the answer is no.. there is no expectation to privacy there.
In regards to the girl in the photo, the waiver she signed to run in The Color Run likely had the following language, found on one of their entry forms: "(g) i grant permission for the use of my name, image, voice, statement or otherwise relating to my participation in the color run event in any form of media, and i waive all right to any future compensation to which i may otherwise be entitled as a result of the use of any of these;"
Then the venue would need to use a picture they have rights to. Taken by
their own people, or completely suckered from some poor sap for
commercial use. (Hey can we post this on our FB page) does not count
It seems that there has to be a whole lot more to this story. We go from them (color run) asking for permission to use the images to all of the sudden accusing Jackson of extortion. It doesn't make sense. Most of the time companies do not change stances so quickly without reason.
I cannot help but wonder how the letter that was requesting compensation was worded. Was it actually threatening the company? Was Jacksons approach one that caused a bad reaction?
I am not saying that any use of images without proper licensing is ok but I am saying that this is not the whole story and we need to be careful how we react as a mob when we dont know what that story is.
Eh, by the time Maxwell figured out his images had been stolen, the crime had already been committed. I'd use (legally) threatening language at that point, because I'd have to assume anyone running a company that uses photos as advertising would know the very basics of copyright law, and thus ignoring them would be malicious intent.
My point is that we don't know what is going on... and who did what, when and where.
I do know that extortion is a very serious thing and for that word to be used something has to be going on that we are not seeing.
To be clear I do not think that any use of an image that is not properly license is not ok in any situation. I am not sticking up for anyone. Just making the point that we do not know what is really going on at this point.
There's really only one scenario that I can imagine that would justify The Color Run's response of accusations of extortion, and that's if Max wrote to them demanding a million dollars or he would do something illegal. If he said "give me a million dollars or I'm going to sue you" that would be an over-reach of what copyright settlements can reasonably produce, but that isn't illegal, and it wouldn't change the case that The Color Run has broken the law and owes damages. If they can't produce a signed quote outlining their licensing, Max can pretty much say whatever he wants to them within the boundaries of legality. I don't think this happened, because that's not what the counter-suit is over. In fact, the counter-suit of "trademark infringement" is pretty obviously a stalling tactic to try to bankrupt Max into dropping his own claim.
This is pretty open and shut, it doesn't even have the ambiguities of fair use. Max could be faxing them pages and pages of "You're a bad person, pay me." and his legal standing is what it is.
You are correct. I was just thinking it was a strange initial reaction with the extortion accusation. It seemed odd.
The counter suit does make them look really guilty for sure.
Dorn, a voice of reason! It is sad that everyone is jumping to swarming the phone lines and sharing all over the place, when he clearly isn't telling the entire story. Just look at his facebook page. He has dozens of photos with him wearing color run shirts. Including this one where he has a staff badge. He has clearly been paid by the run at some point for something. He doesn't mention any of that in his plea for donations.
The Color Run is in the wrong here. Mr. Jackson is the copyright owner according to copyright law in the US; he is the image creator, and unless there was a prior contractual agreement, he owns the copyright. The Color Run owes him commercial licensing fees at a minimum.
Disgraceful ! Shame on the Color Run
The girl in the photo probably signed a release to allow the company to use her photo when she signed up for the race. It's probably in the paperwork she filled out.
Featuring this in the Photography Business Group on LinkedIn. We have over 17,000 members and they tend to get very upset (and creative) with things like this... I am sure they will be receiving a flood of responses.
Speaking of Linkedin, they're still using one of Max's photos as their main image on their Company Profile.
Max's photo - http://on.fb.me/1iWAnsE
Linkedin Profile - http://linkd.in/1ggW7zh
Looks like it has changed. You can leave a comment there, however.
That is ridiculous that they can bully him like that!
And to think I had offered to shoot for them for free! Shame on @TheColorRun! All photographers around the country should see this article so they know to stay far away from them!
Why not organize a group of photographers to protest their next big event? They have a run scheduled in May in NYC. If it is not resolved I'm sure we can round up enough NYC photographers to create an embarrassing spectacle at that event. Even if we begin organizing the threat of protest would pressure the Color Run to settle.
Excellent idea!
You'd think after the AP / Getty v Morel case companies wouldn't be so quick to fight photographers, let alone sue them (much like AP did). Plus it's a terrible PR move rather than trying to settle the situation outside of court.
Never trust anyone who says "Hey! My name is…" in a message that clearly shows there name and picture right next to it.
Suck-city, unethical, unprofessional. I hope Jackson sues the pants off of Sports Authority.
I'm confused with the photo that is used by the "Sports Authority" ad. Shouldn't he be suing Sports Authority or whoever does their marketing? Or did Color Run provide those images to Sports Authority as their own images?
The latter.
Oh Color Run! Why must you do this?? I loved you so… how incredibly lame… :P
I can't even find the words to describe how enraged this makes me... I hope this turns in to a PR nightmare for them! I posted this on their page and my own...
Way to screw-up a college student's life and depreciate the photography industry at the same time. Jerks.