A Legal Blog by Aaron | Sanders, PLLC

The Color Run v Photographer Part 3—Failing at Risk-Reward Analysis

Part 3 of 3: When Doing Nothing Is the Best Choice

This is the last in a series of posts about how the popular quasi-charitable event organizer, The Color Run, got into such a serious scrape with a freelance photographer because of a too-casual copyright license. As I showed last time, The Color Run was lucky that the photographer hadn’t timely registered the copyrights in the photographs, or else his absurd $100,000 demand wouldn’t have been so absurd.

This post is about The Color Run’s reaction to the said absurd demand. Recall that The Color Run reacted by suing the photographer, Maxwell Jackson, for (1) a declaration that it had a license to use the photographs, and (2) trademark infringement. In my introductory post, I suggested that the claim for declaratory judgment was defensible but the trademark claim was a “dick move.”

I Do Declare!

While seeking a declaration of non-infringement was defensible in the face of a $100,000 demand, it wasn’t necessarily the correct or wisest course of action. The other course of action was to do nothing and see if Jackson really would sue. Sometimes, in law, doing nothing is the best course of action. Yeah, I know, bias for action…

In 1928, the Color Run was a lot less colorful.

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The Color Run v Photographer Part 2: The Joys of Copyright Registration and the Perils of Being a Licensee

Part 2 of 3: The Photographer’s Case

Last time, I discussed how The Color Run, a party with (as we’ll see) fairly sophisticated IP counsel, got into such a pretty bad, but avoidable, public-relations scrape with a freelance photographer, Maxwell Jackson, who is (as we’ll also see) very unsophisticated about IP. The main problem was that the parties were way too casual in licensing the photographer’s works for The Color Run’s use, and the parties ended up with two very different understandings of what The Color Run could do with the photographs.

Either they didn’t actually reach an agreement (a “meeting of the minds” as lawyers like to say), or they quickly forgot what they had agreed on. Whichever, they didn’t think to resort to the sensible but surprisingly rare expedient of putting in writing what they want. The Color Run just assumed it could use the photographs however it wanted*, and Jackson just assumed that The Color Run would help promote his business by attributing the photographs to him.**

* One can speculate how The Color Run came to this misunderstanding. Perhaps it thought it could ride roughshod over an individual photographer? More likely, in my experience, is simply…

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The Color Run and a Photographer Engage in a Reverse Mexican Copyright-Trademark Standoff

Part 1 of 3: These Colors Run (Maybe Too Fast) to the Courthouse

You may have heard the one about the quasi-charitable fun run and how it stole photographs from a freelance photograph and then sued him.

Or maybe you’ve heard the one about the photographer who let a quasi-charitable fun run use his photographs to help promote his business but got unreasonably aggressive when things didn’t work out as planned.

What we have here is a kind of reverse Mexican standoff. You know, where two guys are pointing their guns at each other, neither daring to lower their aim but afraid to squeeze the trigger? Except, in this case, the guns are really old and are more likely to explode or backfire as to shoot straight. In this case, the only rational thing to do is lower your aim—which, interestingly, is what recently happened in the dispute between The Color Run and freelance photographer Maxwell Jackson.*

* According to Jackson’s Facebook page.

Everybody Loves a Good Photograph

The Color Run is kind of cross between a long-distance run, the Hindu festival of Holi, and a rock concert. It’s a 5K run during which the runners are doused with bright colors, among other…

Photographing The Color Run used to be a lot harder.

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Come on Get Happy! Publicity Rights in the Online Context

But it’s Sad, Sad News for Momma Partridge

Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.

* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.

** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.

I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was misappropriated by an…

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Pinterest and Copyright: Everyone Just Take a Nice Deep Breath

Part 1 (of 2): Teacup in a Tempest

So, here I was all ready to write a post about how everyone should just stop freaking out about Pinterest’s terms of use (“TOU”), when someone tweeted this excellent piece from the Copyright Librarian (updated here) that basically makes all the points I was going to make. And lots of other people have been making all kinds of other points about Pinterest, copyright and terms of use. Is that going to stop me from writing about Pinterest? Of course not!

The Pinterest kerfuffle started a couple of weeks ago with several articles about a lawyer–not a copyright lawyer, but a good, solid lawyer–who (1) is a photographer and (2) actually read Pinterest’s TOU. In tears (a perfectly natural reaction from reading any TOU), she took down her Pinterest account. This generated a good deal of interest across the Internet, including from Pinterest’s CEO–and, alas, a good deal of legal misinformation.

Nipping it in the Bud

We’ll focus on the article in Business Insider article that “broke” the story (as opposed to the original blog post). What happened was that the lawyer/photographer posted a blog entry about how she came to the conclusion that she should stop using…

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