![[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]
Hello Travis Snyder.
Hello Maxwell William Jackson, wearing a staff badge a year later and clearly not telling the entire story?
There is a Color Run 5K as part of Major League Baseball's All-Star Game festivities this July in Minneapolis. I was just about to register. Then I saw this article.
Wouldn't this be like Nike suing Sports Illustrated?
It really irks me when people and corporations decide to do the wrong thing out of spite instead of doing whats right. They are willing to spend dollars and man hours to affect a suit that would cost them more than they probably would have to pay the photographer. Shame on them, I'm not sure who they answer to (shareholders, sponsors, participants) but we have to shame them into doing the right thing. This is an opportunity to let organizations and companies know this will not be tolerated by the professional photography community. I say lets support the photographer in any way we can because in the end we all lose if we let theses practices persist.
http://www.photobizcoach.com/2014/02/14/color-run-ugly-truth/, it just went out to 40,000 people globally. Let's make some noise
Since it was technically a "public event" I doubt they can claim rights to it just because their logo is present in the image…she could have been wearing a Coke-a-cola shirt…but that wouldn't mean that Coke could just use the image because their logo is present…They'd still have to ask permission to use the image in promotional materials etc…
Also, even if he worked for the company 5 months later, the image taken BEFORE he entered into an employee type arrangement would be completely 100% his still.
I think you are correct. I suspect this is another case of an organization misunderstanding their legal rights. Mind you, there are plenty of other folks who make similar mistakes; A few months ago there was an artist who painted a public mural on a building and then claimed violation when a youtube video included the mural.
https://www.youtube.com/watch?v=my6q554WE60
In solidarity to this college photographer. I will never shoot a color run.
They are getting slow... I've posted to a lot of their pictures "Who shot this? Did you pay them? " along with the link to this story and I still haven't been blocked... I can't say I'm really surprised though. These "charity" groups are notoriously cheap and think they are entitled.
Before everyone keeps jumping on the 'protect the photographer' bandwagon, Max Jackson isn't telling the entire story. Look at his Facebook page - Maxwell William Jackson. He has pictures as recent as May 19, 2013 with him wearing a Color Run shirt and staff badge because he worked at some Color Run events.
If he got ripped off in 2012, why is he all smiles in 2013?
Because at that time he hadn't yet discovered their unauthorized usage of his photos taken before he was a volunteer for them?
so we're back to the" I've stolen your car, and I get caught and then I start negotiating what I think is fair for the value of how long I've had the car for" crap. If I steal the car, there is a good argument that the penalty of me stealing the car should have little to do with the market resale value of it. Its corporate theft, corporate greed and unbelievable arrogance.
"(g) I GRANT PERMISSION for the use of my name and/or likeness relating to my participation in The Color Run event, and I waive all right to any future compensation to which I may otherwise be entitled as a result of the use of my likeness"
That covers them legally, but taking advantage of that to feature a participant in an advertising poster is a big moral stretch. If she were one of several folks in a group photo, it would be a different moral situation.
The agreement also allows any photog to use any images s/he takes of TCR participants the same way.
no it wouldn't....the provision you're citing is only an agreement with TCR and the participant. Unaffiliated entities wouldn't be third party beneficiaries of the agreement thus get no rights conferred under it.
No such language in the waiver. Have a look yourself: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web...
don't need to. other people not signing the agreement or giving consideration thereunder aren't a "third party beneficiary" of the agreement thus have no rights thereunder irrespective of what the agreement says.
https://scontent-a-lga.xx.fbcdn.net/hphotos-frc1/t1/602452_4180402782500...
sorry, meant to link to the photo and f-ed that one up. Sorry!
What he needs is CASH to get his justice . So all the " Photogs " that have been blessed with good gigs and money , that talk left and right about photo protection should get together and create a Fund so people like him can tap into and once he win his case put the money back with a donation extra.
I just reposted the story on the color run's facebook page, everyone else should too! Too bad the kid didn't have them offically copyrighted by the library of congress.
I hope that not only dose the artist (being an artist myself) takes the for all they got but gets his education payed for too. If he dosnt' win this then companies everywhere will try to put artist down more for their work and steal everything rather than employ us.
If you want to voice your displeasure with a huge organization, here are their details,
http://www.thecolorrun.com/
twitter - @TheColorRun
http://www.pinterest.com/thecolorrun
https://plus.google.com/+thecolorrun/posts
https://www.facebook.com/thecolorrun
http://instagram.com/thecolorrun/
color run can suck my .........................
Oh Please!!!!!---the Color Run organizers should be ashamed of themselves--does this mean Coca Cola can now sue random photographers if their logo happens to appear in a photo I take and use for completely unrelated purposes?? Judges need to start throwing these cases out of court-and if anything award the photographer for damages as loss of income if they are using his pictures unauthorized and unpaid for in their advertising. Just ridiculous-what nonsense is this world coming to? Corporations have gotten out of hand with copyrighting words and colors (like Cadbury copyrighting their specific color of purple)
People need to boycott participating in the Color Run.
Once again, a young naive photographer thinks by giving away their work it will open doors for them. It's one of the greatest lies you will ever hear from a company. Your work has value, or else they wouldn't ask for it, NEVER give it away and make sure the terms are outlined in advance!
has anyone asked Wilkie if they provide the photo coverage without compensation and with free unlimited usage rights?
https://www.facebook.com/mjcwilkieproductions
The Color Run : True colors revealed. Shameful.
Yeah, this is one of the hardest lessons an artist has to learn starting out. Never give something away for free exposure. You're in a business to make money. I've been given that spiel so many times as a graphic designer/illustrator starting out. You know what's better than exposure? Paying bills. :)
Also, this exposure you're getting? People aren't going to care when they hire you, they're just going to look at your portfolio and hire you based on your art. Artists don't have the luxury of job experience to get a gig unless it's for a senior position in a company. All companies want to see is the work you can produce and the fact you know how to work their programs.
Fascinating. This isn't really a trademark case at all. As a photojournalist shooting the public event, his capturing the trademarked name isn't trademark infringement unless the mark is being used in the same class of goods or services for which the mark is trademarked and is being used as a trademark....and without doing any research on the point, I sincerely doubt it is considering photojournalism isn't within the zone of protection of organizing a competitive race.
The issue then becomes the photographer's employment status. If he was an employee of TCR at the time the photos were taken then TCR is the author of the photos and therefore owns the copyright in the photos as a matter of law. If he was an independent contractor, then if there was a written agreement that the photos were a "work-made-for-hire" then TCR is the author. Anything less and the photographer is the author and therefore owns the copyright.
Then the issue becomes whether the uses were licensed. Without knowing more, it's hard to say, but taking the photographer at his word, it sounds to me like all of the uses were licensed (i.e., credit "wherever" the photo is used). The photographer has a breach of contract claim if credit wasn't afforded as agreed but if there was a formally written contract there would probably be a cure provision allowing failure to afford credit to be deemed not a breach unless the photographer notified the company of the failure to credit and the company failed to prospectively cure the default.
If there isn't a more formally written agreement then the photographer can (a) sue for breach and (b) terminate the license. Any continued use of the photos would then be copyright infringement subject to statutory damages of $150K/act of infringement and TCR would then run the risk of being liable for failing to put into place a more formal agreement.
Someone should also should mention that the model in the photo probably did not sign a release for commercial use of her image... sure, people are fair game in a public venue for general photography, but not to promote commercial products for commercial gain. Not any fault of the original photographer, but that should complicate the usage of the image by the Color Run staff, as well as Sports Authority.
they almost certainly did as a condition of entering the race. it would no doubt be part of the terms and conditions of participation. background audience would possibly have this argument unless there were signs nearby indicating that entering a certain area confers approval over their rights of publicity.
Corygreenwell is absolutely right. In the teeny tiny print of most events, especially not for profits, is a media and model release that most people never even bother to read. I've been working non-profit and events for a long time and I've seen a lot of this. Several in my area usually end up calling me last minute because the person they offered photo credit to had no idea how to cover an event and get the shot.
BTW, Max, great job you definitely got the shot :).
I waive my day rate as a donation to the non-profit because I really do believe in many of the causes I cover but release NO copyrights and the contract specifically states that usage of my photo's will be negotiated separately from the event contract.
It should be noted that the Color Run is a company that is for-profit, not a non-profit or not-for-profit.
Their model release may not include a photograph that was not taken by Color Run's photographer. I don't think their model release would cover my images.
I can admit when I'm wrong and I completely mis-read the not for profit part about Color Run.
Dammit, I was about to do it again. Their release would usually not cover your images but I am speaking from the perspective of being the event photographer.
Permission granted for using a participants image is usually understood for marketing purposes for the event.... this image was re used in a Sports Authority advertisement. Not quite the same usage.
Go after Coke? … without any money? When will people learn that a w-r-i-t-t-e-n contract is the golden rule, and so is getting paid real money.
Your name under your photograph is by and large not worth cat peee to anyone other than maybe your mom and dad. Cold hard cash is the best "credit" for my photographs you can give, visa, master, discover works too, and paying the invoice works great as well. That's the credit that is worthwhile… Some relatively no-name organization wanting to give me "credit" for using one of my photos isn't going to impress me. Payment is the only thing that impresses me unless you're a famous person that even people living in caves know well and you want me to photograph you for "exposure".
Use a contract and get paid. End of story. ;)
Boycott the Color Scum and go to their website http://www.thecolorrun.com/ click on their contact and send them your thoughts on how they have acted. Lets flood them with our thoughts and wishes.
https://www.youtube.com/watch?v=VM5m-0kaWyk
I would like to send $20 to help out. Where can I do this?
http://www.gofundme.com/thecolorrunsuedme
their facebook page is accepting comments...blast away
Too many brands/companies get away with this. I hope his suit is successful.
This company is the epitome of slime.
They intentionally oversell "5ks with color stations" and barely provide anything in return.
Went to one and it was barely 4 stations in a giant sports complex parking lot. They had thousands of tickets sold through Living Social, ect… I was furious. Had I known the throngs they overbooked to, I would've never bought a ticket.
The lines were horrendous! We waited through 3.5 hours of lines to run in a parking lot. They ran out of water, out of welcome packets, they didn't warn the cornstarch makes your lungs hurt. I looked them up and saw they do this across the country. All they are, are slimy marketing schiesters on par with scumbag loan sharks. Never again.
Jon B needs to give it a rest. Sure he had a ridiculous list of demands. I would have as well if I walked into a major chain/store and saw my photograph being used without my permission. Heck I would have demanded a lot more than he had. In a society built on rules, regs, and rights the Color Run just got caught with their pants down. Time to pay up before the bad press implodes the entire operation IMO.
From the first update, sounds like CR's legal strange strategy may have been to claim that the photographer was performing "work for hire." Weird.
If he was doing "work for hire" he would have no ownership of the photos. It's not a good way for a photographer to do business but more companies insist on "work for hire" and more photographers are caving in.
I'm amazed the recognizable girl in the photo isn't suing for use of her likeness. I didn't read anything about her having given permission to the photographer in the first place for him to grant usage to the Color Run.
That's a great point.