A Legal Blog by Aaron | Sanders, PLLC


Is it Fair Use? Photography and Creative Commons Edition

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Does Distributing a Work Under Creative Commons Mean That Your Work Has No Economic Value?

A professional photographer finds a political website has used his photographs of celebrities in concert to show that the celebrities agree with the website’s viewpoint. He licensed the photographs under Creative Commons, but the website violated the terms. Can the website escape under fair use?

The plaintiff is a photographer. He took this photograph of Kenny Chesney performing in concert:

And this photograph of Kid Rock performing in concert:

Although the plaintiff is a professional (which is evident from the quality of the photography), he decided to upload these photographs to Wikimedia under the Creative Commons attribution license (the “CCL”). Anyone may use the photographs for any purpose, without payment of any kind, so long as the photographer gets credit for it. The photographer says he uses CCL for marketing purposes and is, thus, valuable to him.

The defendant is non-profit that promotes a certain religious-political belief. I’m not going to tell you what it is because it’s irrelevant. The non-profit wanted to tell the world, through its website, that Kenny Chesney and Kid Rock also share this belief. To make the webpage look better (or perhaps more…

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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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