UPDATE Monday 2/17/14: The parties have settled. Read more from each side here.
NOTE: The Color Run has repsonded. Scroll to end of post for the response, pasted in full.
The Color Run is a race during which people wear white and get paint dumped on them along the course. It's dubbed "The Happiest 5K on the Planet" and its organizers say it's so successful that it has donated $1 million to charity. They have called it "the largest and most well-recognized running event in the world."
Yet, in a lawsuit, The Color Run is whining that it is the victim of a college kid who let the race use one of his pictures on Facebook. The student, Max Jackson, found the run was using his images in its print marketing materials, and dared to ask for compensation. He might have been a little big for his britches asking for $100 grand -- but he didn't really deserve the court case that The Color Run is trying to whomp him with.
Jackson is a student at Florida Atlantic University in Boca Raton and photo editor for the student newspaper. On October 21, 2012, he traveled to Miami with the university's photo club to snap some shots of The Color Run. Jackson posted the images on his Facebook page.
Screenshots provided by Jackson show that a rep from the Color Run, Scott Winn, contacted Jackson via Facebook. He called the pictures "awesome" and asked if Jackson "would be interested in letting us use some of your photos in an album on our Facebook page? We'll link back to your work in the album. Our other photographers have gotten some good exposure from this."
As Jackson explained, "At the time, I was a new photographer and this amazing new company was offering to feature MY photos on THEIR page!" He agreed to let Winn use the pics. But "what seemed like a great opportunity was about to take a turn for the worse."
He was surprised when "in July of 2013, I walked into a Sports Authority in King of Prussia, Pennsylvania... and was handed a flyer that featured one of MY photos. Not only was this flyer produced WITHOUT my concent, it failed to give me PHOTO CREDIT!" He found his picture had been used in print ads, on displays in Sports Authority stores, and in The Color Run's international marketing materials.
Court documents show that Jackson wrote to Travis Lyman Snyder, founder of The Color Run, while on the plane heading back to Boca. Jackson explained that he "love(d) the Color Run and everything that it delivers" but that he was a college student "using my photograpy business to pay for rent and tuition, so selling my photos is how I get by." He explained that his stepdad, a cosmetic dentist, had advised him to hire a lawyer and sue in federal court.
Jackson wrote that instead, he was "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." He warned "if no efforts are made within 15 days, to contact me I will be forced to take further action."
Looks like Snyder was the one who took action - and hard. The Color Run filed a lawsuit against Jackson in Utah, where the company is based. The lawsuit argues that Jackson "gave the Color Run an implied license" to use his pictures and that it "inadvertently" used them in print promotions. It says Jackson, on his Facebook page, listed the Color Run as an employer and used the run's trademark and logo. The lawsuit contends that the Color Run is "the largest and most well-recognized running event in the world" and donates $1 million to charity, yet it's the victim here.
The suit 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 damages "not less than $75,000" and "an amount three times the greater of Jackson's profits derived from... Jackson's wrongful acts."
Jackson says Snyder told him he "would rather spend $500,000 on lawyers than be extorted by me." Jackson says the lawsuit is a "frivolous" attempt to "sue me into submission."
He estimates he'll need between $50,000 and $100,000 to cover legal fees before it's said and done. Help this kid out by patronizing his business, maxxsphotography.com, or donating to his GoFundMe page at http://www.gofundme.com/6qn0ds. As of today, he only had $245.
Neither The Color Run nor its attorney responded to e-mails sent this afternoon. The attorney's voicemail said he is traveling.
The lawsuit and Jackson's letter, which is an exhibit in the suit, are pasted at the end of this blog.
UPDATE, 10:50 P.M. FRIDAY, 2/14 Late Friday, Travis Snyder sent this response:
"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. 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 you a "#scumbag", I love 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."
Here is the lawsuit:
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