'The Color Run' Violates Agreement With College Photographer, Then Sues Him

An anonymous reader writes "Photographer Maxwell Jackson went to an event called The Color Run and took some pictures. He was approached by the organization to share some of his photos on Facebook, and he agreed. Later, he found they were being used without attribution in promotional materials such as flyers and signs. When he contacted The Color Run over the misuse of his photos, they sued him. As a professional freelance photographer for a local college and a hobbyist code junky, I'm intrigued by this story and how it should be a warning for members of either trade. There is a good lesson to be learned here about taking for granted the legal implications of the manner in which you exchange your own intellectual property with anyone."

Logic

[SJHillman]

"they have also argued that because their trademark “Color Run” is in my photos they are entitled to them"

Just wait until Apple or Coca-Cola hears about this. They'll suddenly own so many movies in which their logo appears they won't know what to do with them.

Re:Of course

[wiredlogic]

that's the automatic response.

Failing to make a reasonable attempt to settle disputes before going to the courts isn't a good way to get a judge on your side, especially when you're clearly the belligerent party.

Re:Of course

[hax4bux]

Agreed. This is the automatic response (note I didn't say the good or fair response) on the theory your opponent cannot afford a defense and will simply capitulate. Almost no attorney will accept the defense on contingency, you will have to pay up front. Depending upon where you live, probably $20K just to get to "show cause" and more during "discovery" and even more during the "trial". This would be a great time to consider what those pictures are worth to you because law != justice and participation is not optional.

Re:Legal system works

[ProZachar]

"That seems to be against the whole hippy color run spirit."

Nonprofit status only means there are no shareholders that profit. Nonprofit status does not imply "nobody profits".

Starting a successful nonprofit is a hip new way to become rich while convincing the rest of the world that you're a selfless do-gooder.

Re:Logic

[ArbitraryName]

On what planet does giving someone expensive electronics in return for a service not count as "payment"?

Re:Of course

[UnknownSoldier]

America really needs a new tag-line: Lawyers for the Rich; Injustice for the Poor.

Re:Wow....

[Anonymous Coward]

So, $2000 for the retail store ads. But that's per picture, and the story says "his pictures", so at least twice that amount. Then there's the flyer, plus multiple web sites with global reach. And they "sublicensed" the pictures. The article mentions that even Coca-Cola used his pictures. It would be interesting to know if Coca Cola sponsored the Run and got to use the pictures in their ads in return. And then retroactive licensing is usually three times the normal price. Do you still think $100.000 is far out? And don't start with the "he's only a kid, not a top photographer". If multiple companies (including marketing giants like Coca Cola) deem his work worthy of being used in advertising, he deserves a professional price for his photos.

Re:Trademark powers? -- NO.

[localroger]

This is all actually fairly straightforward if a little weird under boilerplate copyright law. First, lacking model releases of his own, Jackson cannot use the photos for commercial purposes. He could use them as part of a portfolio but as soon as he puts one on a billboard or in an ad, he needs permission from the individuals who are identifiable in the image, which he doesn't have. Second, in the absence of a contract Jackson owns the images, full stop. Nobody can put them on a billboard without his permission. He gave permission to put them on Facebook, but the going rate for use on billboards and in ads is much higher. $100K is not unreasonable for the level of use that has been demonstrated. Third, Color Run almost certainly has a model release embedded in the paperwork the runners sign to enter the race, so they have the right on that count to use the pictures. They would be OK if they compensated Jackson, but they are not OK if they do not compensate Jackson. This is the ONLY way it is OK to put those pictures on billboards -- Jackson has to give permission to do so, for which he deserves much more compensation than he would get for use on Facebook, and Color Run has to do the publishing because they have the model releases. The Color Run people are way out of line here and probably indulging in a snit because their authoritah was disrespected. But they are very clearly in the wrong. As for trademark, that's completely irrelevant, since Jackson has no right to publish the pictures commercially without the model releases that Color Run has. However, Jackson DOES have certain Fair Use rights, such as releasing a few examples in the course of presenting his side of this story, as long as there is no danger of the images being misinterpreted as a commercial representation by Color Run themselves and as long as they serve certain alternate purposes, for which "news" qualifies.

Re:Of course

[j-beda]

Can you make reasonable attempts to settle a case when someone asks $100k for something worth $2-3k and then threatens legal action? [browardpalmbeach.com]

If you are using someone's "something" worth $2-3k without permission, then you're in a pretty piss-poor bargaining position and $100k night actually be not such a bad price to pay. The statutory damages for copyright infringement can be pretty steep:

https://en.wikipedia.org/wiki/... [wikipedia.org]

"Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work."