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‘The Color Run’ Sues College Student for THEIR Illegal Use of His Image

February 14th 2014 12:43 PM

If the title is a bit confusing, it’s probably because this lawsuit is kind of ridiculous and a prime example of a big company trying to bully someone for THEIR wrongdoing.

Maxwell Jackson is a 21 year old college student who went with his photography club in 2012 to The Color Run in Miami. The Color Run is “The Happiest 5K on the Planet…that celebrates healthiness, happiness and individuality.” According to their page, it is the “single largest event series in the United States.”

Max Jackson TCR Shelia

After posting one of his photos, Max was approached by the Photo Director of The Color Run to use some of the images for their Facebook page with “photo credit wherever [his] photos are used,” and (cough, cough) “good exposure.”

Color-run-lawsuit

Max, then 19 and just starting out in photography, was excited for the opportunity and gave his consent. A few months later, he was in a Sports Authority store in Pennsylvania and was handed a flier with his photo on it, and no photo credit.

color-run-lawsuit-1

The Color Run continues to use Max’s photos on their main websites. “The photos have also been featured by publications like U.S. News, Baltimore Sun Times, and companies like Coca-Cola.” Max states.

Max then wrote a letter to The Color Run “requesting compensation as follows: $100,000.00 US deposited into my business bank account, additionally to be named the Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence, my logo to be added in sponsors section next to Chevy on the bottom of your web pages. My name to read at the bottom of any photo’s used in legible print from the next print run forward as, Photogrph by Max Jackson.

[REWIND: Photographer Wins $1.2 Million Lawsuit against Agence France-Presse and Getty Images]

 

In response, according to Max, Travis Lyman Snyder, owner and founder of The Color Run, told him that he “would rather spend $500,000 on lawyers than be extorted by [Max]” and followed with a lawsuit against Max arguing that Max gave them “an implied license,” and “inadvertently” used his images in their print ads.

According to Broward Palm Beach New Times, the lawsuit alleges “nine different causes of action, including federal trademark infringement, false advertising, and unfair competition. For most of the counts, the suit asks to be awarded attorneys fees, compensation for damagesnot less than $75,000′ and ‘an amount three times the greater of Jackson’s profits derived from… Jackson’s wrongful acts.‘”

Max is anticipating $50,000-$100,000 to cover his legal fees and has started a GoFundMe campaign to raise money to help him cover this cost. Being a college student, already struggling to pay tuition and student loans, this is a hefty sum, but he feels that he should stand up for his rights.

You can support Max at his GoFundMe account and his Facebook page.

What are your thoughts on The Color Run’s lawsuit against Max? Share your thoughts below.

CREDITS: All photographs shared by Max Jackson are copyrighted and have been used with permission for SLR Lounge. Do not copy, modify or re-post this article or images without express permission from SLR Lounge and the artist.

[via GoFundMe, additional info Broward Palm Beach and Fstoppers]

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Comments [34]

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  1. Jonas

    I love Max’s demand letter. He asks for $100k, and includes sentences like this: “My name to read at the bottom of any photo’s used in legible print from the next print run forward as, Photogrph by Max Jackson.”

    Wow, you think he’d run his demand letter through a grammar check and a spell check. No wonder the color run lawyers thought they could bluff him.

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    • Anonymous

      Wow, that was such a relevant fact, grammar – really – he’s also short if you want to pick on that… jack-ass

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  2. CV

    The use Max agreed to (as stated in their email) was to post the photo on their Facebook page. He did not agree to an other use of the photo and should be compensated by the company that “celebrates healthiness, happiness and individuality” as well as any other company that used the photo (U.S. News, Baltimore Sun Times, and Coca-Cola). Max is the copyright holder and unless these companies can prove their right to use the photo, they are guilty of theft. Max just needs a contingency lawyer since he doesn’t have the money these companies have. Companies don’t have the right to trample on an individual just because they have the deepest pockets.

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  3. Rick

    In the end, who makes the money of these kinds of disputes? The lawyers! These weasels have ruined so much of our society it makes me sick. We can argue about who’s right and wrong, my reaction after reading this more complete story is that reactionary attitude on both sides fanned this into a flame. None-the-less, who will win? The lawyers! Weasels!!

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    • Anonymous

      that is why the kid did all the work Pro-se (himself with his fathers help) Wasn’t going to play the lawyer game from day one and his first demand said that in the case file. And the father and son made it work in the end. Got both the license issue resolved and paid; and the site credit on the color runs pages from seeing his logo is now on the page
      .

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  4. Ira

    I was taught a long time ago, in business — get it in writing. If there’s no contract then Max doesn’t have “a leg to run on” and “THE RUN” is totally within their rights. Plus, he’s being damn greedy. Appropriate compensation might be photo credits and free entry to the run for life.

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    • Brett

      You have it backwards. If there was nothing in writing, then TCR has no “leg to run on.” It’s Max’s photo, thus, he is the owner. Why would “The Run” be within their rights to profit off someone else’s photo?

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  5. lisa

    I would have liked to have posted a tidbit on my blog and redirected my readers to this article, but at the end it clearly states “CREDITS: All photographs shared by Max Jackson are copyrighted and have been used with permission for SLR Lounge. Do not copy, modify or re-post this article or images without express permission from SLR Lounge and the artist.”

    OK, they why do you have Pinterest links to the photos that you asked not be be shared :-)
    ??

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    • SLG

      I”m no lawyer or copyright expert but I’m guessing that if they have Pinterest share links embedded then that means they have given permission for it to be shared on Pinterest (unless a mistake was made on their part.) It also it doesn’t sound to me as if redirecting to the article qualifies as ‘copy, modify or re-post’ of the article or images since they aren’t going to be on your blog. I’d clarify that with them if you’re truly worried about it.

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  6. Janet

    Apparently, they have settled the case. From the GoFundMe page:

    “Thank you everyone for your support in regards to this matter. The Color Run and I have come to a mutual settlement agreement that beinifits both parties and none of this would have been possible without any of you!

    “The refund process for all of the money raised will begin within 30 days of me typing this. I will also begin the formation of a 501c3 to aid and assist photographers negotiate for, provide legal resources for and provide financial fundraising to protect artistic rights. Once that is set up if you still feel passionate about this please don’t donate here, donate to the new charity once it is formed!”

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    • Matthew Maurice

      There are more than a few inconsistencies here, but “he said/she said” is par for the course in litigation. The founder of the Color Run is clearly trying to spin, http://thecolorrun.com/689-2/, but the bottom line seems to be “From the beginning, we had a contractual ‘use’ agreement with Max…The problems arose from a poorly worded, semi-verbal contract.” Anyone who’s been involved in business understands the problem with that latter sentence.

      The fact that they rolled ov–uh…settled so fast means they probably saw that he was, successfully, raising money for a defense and re-thought that whole “rather spend $500,000 on lawyers than be extorted” idea [if he actually said that]. Anyway, we’ll probably never know the details of the agreement, but I’ll be checking out the collateral material for next year’s run, and does anyone know if Max has done any sports car shopping this week?

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  7. Dale

    If they have calculated the commercial value of that image to be in the $200 000 bracket, there’s no rule that they have to recover that all in cash. If a portion of that payment is recovered via The Color Run listing him as an official sponsor & displaying his logos, that is a trade agreement and still has a quantifiable value.
    In some ways he may benefit far more, since properly activated sponsorships are designed to yield a far better ROI than just 1:1. Asking for a trade compensation that would cost only $100 000 to buy, but is worth 3:1 in value is very very shrewd … and entirely fair.

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  8. Anonymous

    In addition to seeking attorney’s fees against Color Run for their frivolous lawsuit, Max should look into filing a bar complaint against their attorneys for same.

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  9. Peter

    Here was a response from Travis Snyder:

    “Hi, this is Travis Snyder. I wanted to respond personally to this matter. As the founder of The Color Run, I’ve had the opportunity to work with many successful creative partnerships of all sizes, including amazing photographers. I respect their ability to capture the essence of our event and fully believe that they deserve attribution for their work to showcase their talents. This issue with Max is a single anomaly and quite frankly makes me sad. Max first came to shoot The Color Run because we granted his school class non-commercial access to come shoot the race in Miami where the photos in question were taken. After this, Max actually ended up working our events over the next year as a non-photographer and traveling and setting up with our traveling teams.
    About a year later, Max first initiated questions about the use of some of the Miami photos. We sat down and genuinely tried to reach an amicable solution, including offering financial compensation and exposure through our networks. Our offers were declined, and met with the following demands:(language taken from legal filings)
    “$100,000.00 US deposited into my business bank account” (This amount went on to be raised by Max to $300,000).
    “To be named the Official Photography Sponsor of The Color Run (Globally) for the remainder of its existence.”
    “Max Jackson Logo to be added in sponsors section on the bottom of all web pages”
    “My name to read at the bottom of any TCR photo’s used in legible print from the next print run forward as, Photograph by Max Jackson”
    “if no efforts are made within 15 days, to contact me I will be forced to take further action”
    Understandably, these demands were quite difficult for any organization. They went far outside professional compensation and credit for photography work. We discussed other options, and ultimately when Max said he was planning to sue rather than continue a dialogue, there was little option left but to defend our rights through the legal system. I have been and will continue to be at the table to visit about how to resolve this outstanding issue.
    As hard as it is to see tweets calling me a “#scumbag”, I am amazed by the Internet and its ability to give everyone a voice. I also appreciate the opportunity to share more information and insight into a complex situation. My personal hope and intention has always been to get this resolved directly, amicably, and fairly.
    -Travis”

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    • Dale

      I however have some pressing questions for Travis.
      1. Having worked with creative partnerships before, how were the images subsequently used in additional media and territories without formalizing a proper agreement with the copyright holder?
      2. How exactly did the images end up being used by Sports Authority and Coke? Are they to be accused of image theft too, or did The Color Run fraudulently transfer ownership / licensing to these multinationals.
      3. How is it that no red flags went up at The Color Run during these processes, and there was no halt in proceedings long enough to FIRST get licencing from the owner?
      4. Why was there only an attempt to enter into dialog after being caught with your hand in the proverbial cookie jar?

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  10. Shelly Hawthorne

    I find it interesting that the consensus is that Max asking to be listed as a sponsor and be given public credit was too much. In reality, that would have been a very inexpensive bargaining point for the Color Run had they taken it, especially when compared to whatever monetary compensation they will end up paying along with lawyer and court fees.

    It is most likely that Color Run will not only have to pay for reasonable usage fees but also lost revenues to Max when they illegally sold the image to Coke, Sports Authority, The Baltimore Sun, and whoever else they sold the image to.

    It will be interesting to see how this ultimately plays out.

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  11. Woody

    It’s an ambit claim. You can always negotiate down, you can’t negotiate up. Hope he owns the company.

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  12. Peter

    What this article fails to point out is that the creator of color run offered to settle for $30,000. The photographer then upped his demand to $300,000. That’s when the remarks were made by color run that they would rather spend $500,000 on lawyers, then pay the photographer that amount of money.

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  13. Federico

    The demands seem a little too high, but Color Run actually used the photo for commercial uses without consent.
    They now should listen to the photographer demands and, maybe, negotiate them, but in this absurd story they started a lawsuit.
    Are they out of mind? They just did something wrong, they know it and still they act as they are on the right side.
    Just plain crazy…

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  14. Isaac

    Hey, he might be demanding and a pain to deal with, but you can’t use a photo in advertising let alone international advertising without proper compensation being discussed and legally settle “before” you go ahead and use it.
    An agreed amount of money should be paid.
    And The Color Run is in the wrong for using an image it didn’t get clearance to use in that way.
    Plus, haven’t you been 21 and not knowing how to deal with life in general? Suing a 21 year old isn’t a very nice thing to do. If you were confident that you were going to win the case, you should have just let him sue you.

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  15. Shane

    This kid is an idiot for “demanding” they pay him $100,000 plus make him official sponsor for the rest of its existence, plus put his logo alongside all the other paying sponsors. I understand wanting to be compensated for your work, and Im sure they would have been happy to pay had his demands not been so ridiculous.

    The thing is, they did ask him for permission to use the image on their Facebook page, and Im sure somewhere along the line someone at the company made a mistake and assumed that meant they also had permission to use it elsewhere. Companies like that have a lot of people working for them and mistakes like that can be made fairly easily.

    They arent saying they would rather spend $500,000 in lawyer fees than pay him for his photo, they are saying they would rather pay $500,000 in lawyer fees than be extorted by this idiot kid and his insane demands.

    For $100,000 plus sponsorship credits they could just hire an advertising company to stage an event and get any photos they need. There is no way a photo like this is worth $100,000.

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    • fotosiamo

      You’re actually wrong. The photo may be worth as much as $100,000 (or more) in commercial compensation BECAUSE of the scope of the advertising campaign involving Sports Authority and Coca-Cola in multiple medium in a presumably large/international geographical area.

      His other demands are off-base, however. Commercial photography licensing fee can be worth a lot of money. But what they don’t do us put the photographer’s name on the commercial image.

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  16. Mike Davenport

    It looks to me like “The Color Run” either released or sold the photographs for commercial use, (see the photo used in POP advertising at Sports Authority). Since they do not own the image or the copyright, they are WAY out of bounds. According to the email posted, the Max was contacted by the manager of photography and videography of the Color Run, a person that should know better. Using the photo for more than what they ask, ie news release, is bad enough. Releasing or selling the image for advertising is way out of line. While I agree that young Max went a bit too far in his demand for sponsorship, asking 100k for compensation in light of the images commercial use is in line, or even short, of what he should receive.

    I hear plenty of professional photographers complain about “newbies” giving away their work and under valuing photography in general, the real issue with the digital age of photography is that too many photo buyers try to take advantage of photographers. The idea that corporations can get free images to use as they want to with out proper compensation is the real crime here.

    IMHO, a few folks at the Color Run should be fired, and the Color Run should pay some big bills for what is a blatantly illegal infringement according to copyright laws.

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  17. Pye

    Ok, so we know that the girl who was in the picture most likely signed away her rights when she signed the “waiver” just to run, or at least, from seeing these types of events, that is generally the case.

    The photographer’s rights however were not signed away. But, here is the thing. What Color Run and the people behind it did here was clearly wrong, but I don’t feel like the photographer is necessarily in the right either. The photographer’s demands are frankly pretty offensive, especially considering that holding these types of events doesn’t generate the kind of revenue that he is demanding ($100k). If a company such as Coke-a-Cola or Sports Authority uses it as an advertising campaign piece, that is different.

    But, for Color Run to simply higher an amazing photographer to come and capture the event for a single day and provide them the images, well that would cost probably around $3k-$10k, and they would own the rights to everything.

    So, it is crazy to me to be requesting $100k as compensation (unless he is going after other commercial companies outside of just The Color Run).

    In addition, the additional sponsorship requirements are just downright crazy. After having this kind of a bad experience with someone, nobody is going to want to continue the working relationship. They want to resolve the issue, and move their separate ways. To require that he is the official photography partner or sponsor for “the remainder of its existence” seems very much unreasonable.

    I understand both parties. I understand the anger of the photographer in seeing his work used without credit (happens all the time to us as well). I also understand the feeling of the business person in what is an unreasonable request.

    It stinks for the parties involved, but is also a good reminder to the rest of us to communicate clearly, put your agreements in place, and to follow procedure. Time spent up front would definitely save lots of dollars and hours down the road.

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    • fotosiamo

      The demand for official sponsorship and his name plastered on all the images is fairly excessive, and his tact on the approach wasn’t that great, but given the scope of the commercial value of the image, the $100k demand for compensation is not that far off from industry standards for commercial photography:

      – National and international usage
      – Third party corporations’ commercial usage
      – Multiple medium
      – Around 2-3 months of commercial usage.

      Also, had he registered those images for copyright, he could even pursue punitive damages. I don’t think he did that, though.

      What is going to be interested is the actual verbiage of the initial agreement he signed with Color Run. I’m looking for words such as “Work for Hire” or “Transfer of rights of ownership.” Those two things would give Color Run actual ownership of the images.

      If the words “Unlimited license” is in the agreement, those will give Color Run unlimited usage without consent even though Maxwell still retains copyright.

      If the words “non-commercial license” is in the agreement, then Color Run is definitely in the wrong because they use Maxwell’s images without consent for commercial purposes.

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    • Ruben

      While he lacked taste, they have no justification for suing him for asking for this. They didn’t suffer any damages. No damages, no money.

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  18. Herm Tjioe

    What started out as a sloppy disregard of the photographer’s work is turning into a huge mess. Was there ever any attempt to reconcile or discuss in private before such lawsuit was filed ?

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  19. Ryan

    This is the first time I’ve seen the photographer’s demands. I had assumed he only asked for monetary compensation, but he’s also asking to be named an official sponsor, too? That is ridiculous. Sponsors pay companies for what is essentially advertising.

    Did the Color Run use his image beyond his permission? Absolutely. Does Jackson have the right to seek compensation? Of course. Is he doing it the right way? Absolutely not.

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    • Chris

      I agree. that’s not the way to do it. I can’t believe he’s only asking for $100K though. With companies like Coke using the photos, probably bought from the Color Run people, there’s gotta be a lot more than that exchanging hands.

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    • Hanssie

      I agree, he could’ve been a little more tactful in his approach, of course, he’s 21 and at that age, I probably would’ve asked for the moon too.

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    • Eric Jackson, father

      I sit by watching all the speculation and giggle. If someone sends a demand for nothing – you get exactly what you ask for, nothing.

      Yet if one would open a negotiation with something that expresses how hurt they feel, reality hits the offender clearly. In this situation it hit so hard that The Color Run reacted, rather than responding. The reaction was clear, They Made it a Federal Case, and they had no right to attack Max via Trademark Infringement Federal Case. But anyone who knows Federal Court knows that this means 6 figures are going to be spent, not to mention the time and paperwork. So until it is you against some muti-million dollar company with endless supply to cash, don’t tell Max what he did to simply protect his Constitutional Rights as an American. The $ numbers are not relevant.

      And for those who don’t know the Law – Don’t speak on things you have little valid opinion.

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    • HEather

      I totally agree. The kids approach to The Color Run was a bit.. raw and over the top- “demanding to be named official photography sponsor” – ? uh… ok, compensation I understand but geez Louise what a way to go about it. However… The Color Run’s response was highly unethical and downright slimy. I’ve personally enjoyed partaking in the color run myself. I bring my camera and a cover in hopes of keeping colored cornstarch from infiltrating my camera and snap wonderful shots of my kids friends and family. Fortunately there are a handful of others like it around here this summer and I’ll just have fun at one of those instead.

      As they say, you catch more flies with honey…

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  20. Jamie

    Im curious, all this talk about who owns the image.. how about the young girl in the image, do we know if she is 18?!? and is ther ea model release??? she could also be compensated, ya know for usage.. they never had her permission!

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    • Chris

      Generally speaking, when you’re in things like that you don’t need a release because you sign (or checkmark) an agreement that they can use your photos for advertising purposes and you can’t sue them if you somehow hurt yourself. It’ the same with the “warrior dash” that i do every couple years. You have to indemnify them in case you do something stupid like do a flip off an obstacle, and in that release you sign away the rights to use your image for ad purposes, etc. From what i understand this kid was working for an imaging company that is covering the color run…. he used the words “color run” when he posted his employment to facebook and they’re suing him over that because he was working for another company, and not them. It’s convoluted at best, the reason they SAY they’re going after him, but it’s still a toolbox move on their part. I don’t know what he was asking for, but the long and the short of it is, if they would have said “oh we’re sorry, here’s $100K we were wrong” He probably would have gone “yep” and disappeared into history. The fact that the head guy is quoted as saying “i’d rather spend 500,000 in lawyers fees than be extorted by you” is pretty indicative of their attitude. They know they were wrong, they’re just bullying now to set precedent for future mishaps that WILL happen.

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