Student photographer reaches agreement with The Color Run after alleging wrongful use of images

FLORIDA — A recent dispute involving a student photographer and a popular 5K organization reached a settlement over the weekend, after the student’s crowdfunding campaign to offset the costs of a pending lawsuit generated outcry online.

Florida Atlantic University student Maxwell William Jackson said The Color Run exploited his work after he willingly provided images for use on Facebook in exchange for photo credit. But the company denies that the use of Jackson’s images beyond Facebook violated the agreement and took issue with Jackson’s later requests for compensation, as well as his use of Color Run “marks” to promote his work online.

The images in question were taken in October 2012 at a Color Run event near Miami. Jackson photographed the race as a member of FAU’s photography club and then posted the photos on Facebook, according to court documents. Within days, Scott Winn — identifying himself as someone who manages photography and videography for the Color Run — contacted Jackson through Facebook to ask for permission to use the photos in an album on the organization’s Facebook page.

“We’ll link back to your work in the album,” Winn wrote in his Facebook message, according to screenshots contained in court documents. “Our other photographers have gotten some good exposure from this.”

In the exchange that follows, Winn asked Jackson for permission to use photos without his personal logo and to replace it with the Color Run logo, saying the organization can “link to your website on every photo and put your name as credit.” Jackson agreed and provided the photos.

The following summer, Jackson began noticing that some of the photos he provided to Winn were being used in promotions elsewhere without credit, according to court documents.

In a July 2013 letter, included in court filings for the case, Jackson wrote to Color Run founder Travis Snyder to voice concerns over the use of the images — and also requested “$100,000 US deposited into my business bank account,” a designation as the “Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence,” placement of his photography business logo on the Color Run website, and clear photo credits on any images used in the future.

The requested compensation was “only a small portion of the potential income I lost due to the breach and extensive use of my artwork in conflict with the contract agreement,” Jackson wrote in the letter.

The following month, the Color Run — based in Utah — filed a suit against Jackson alleging that Jackson had violated copyright by using Color Run-affiliated phrases (either approved or pending trademark approval at that time) “in connection with his photography business.” The suit also disputes Jackson’s claims that the Color Run violated the initial “Use Agreement” outlined in the Facebook exchange, among other things.

Initially, Jackson represented himself with the help of his father. He’s being represented now by attorneys pro bono, but other costs related to the lawsuit would still add up significantly — so he turned to crowdfunding site GoFundMe for help. (Jackson also set up an accompanying website to respond to questions about the case.) According to his page, he raised about $5,000 in 10 days, with an overall goal of $50,000 — but those donations will now be refunded, according to a note posted after the settlement was reached.

Jackson declined to be interviewed, but in a statement said he plans to set up a nonprofit to “Protect Photographers and Artistic CopyRights [sic].” Such an organization is important, he added, because photographers are stronger as a community than they would be alone.

In a statement online, Snyder said he was glad to have avoided “the drain of the legal system” and offered several pieces of advice for photographers and businesses looking to use images. He also maintained that the issue was “never about The Color Run lifting and stealing images.”

“The problems arose from a poorly worded, semi-verbal contract,” Snyder wrote. “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.”

The situation seemed to involve “two extremes,” National Press Photographers Association attorney Mickey Osterreicher said last week before the settlement was reached. It also serves as a cautionary tale for photographers on the importance of setting up clear expectations for compensation and staying rational when resolving disputes over the use of their work.

When a photographer finds out that his or her work is being exploited, Osterreicher said, “that doesn’t mean they should have visions of sugarplums dancing in their heads.” On the other hand, he said, companies should value photographers’ work enough not to ask them for images without pay — and photographers shouldn’t be willing to work for free when asked.

His advice to others: Try to get a licensing agreement up-front that clearly articulates the expectations for how the work is to be used and what, if anything, the photographer will receive in return. And in crafting that agreement or resolving a conflict, don’t hesitate to seek out advice from someone who has specific knowledge of media law. (SPLC is one such place to find that guidance.)

The case is “a great example of what happens when photographers whose work has been infringed (or in this case used beyond the agreed upon license) think they have won the lottery and are entitled to amounts far beyond what they would have obtained through a license,” Osterreicher wrote in an email Monday.

Osterreicher added that this is the second time he’s seen a case settle in response to social media pressure, pointing to another dispute involving the widely followed Humans of New York photos.

By Casey McDermott, SPLC staff writer. Contact McDermott by email or at (703) 807-1904 ext. 127.