What happens when you get too much respect? The kind of respect that takes the fruits of your creativity (or labor, whatever you want to call it) and runs off, leaving a trail of color and broken trust in its place? Well, if you are a major company and your possession is the product of some underground photographer you may breeze through the finish line faster than Apollo Ohno (there, I got my Winter Olympics reference in). Or your luck may run out and you face a public battle with a photographer who is tired of being exploited by the man.
Fast forward about a year. Jackson is walking around a Sports Authority and he notices this hidden gem.
After a weekend that saw the internet blown up with articles and tweets that saw both Color Run and Jackson trading barbs, the dust finally settled in the form of a settlement (yes, that was intentional). As it turns out, Jackson had an agreement with Color Run all along to be a traveling “team assistant”, helping with event set-up (but not photography). The original photos were taken by Jackson under a limited, non-commercial access permission to photograph the event. Color Run emphasized that it had a contractual “use” agreement with Jackson to receive high-resolution, non-watermarked images that Color Run could use online or in print. So basically, because Jackson had limited rights to use the photos that he took at a Color Run branded event, he could not make the exorbitant demands that he made on Color Run (including $300,000 in damages, being named as the “Official Photographer” of Color Run internationally, and recognition on the sponsors page).
I don’t know the full details of the original “contract” reached between Color Run and Jackson, but it seems like a little bit of a stretch that Jackson would relinquish all rights to any commercial use of the photographs he took at Color Run events in exchange for some recognition on Color Run’s website and social media pages. After all, a serious photographer may be aware of the full commercial value of their images and be reluctant to enter into a “use” agreement for photos that were shot on a non-commercial access basis (I’m not really sure what this constitutes as photographers do not necessarily need permission from an event to take photos, just the proper release forms from people appearing in the photos).
From a copyright perspective, I see lessons for both parties here.
-Determine the type of access you have to an event. Just because you are shooting photos at an event does not mean that you need permission from the events’ managers (this varies of course depending on the event).
-If anyone asks to use photos that you have taken, really iron out the rights that you are granting to the images. This means getting an agreement in writing, if possible. If a company requests rights to use the images for online or print purposes, the scope of the rights may be broad and rather liberal (i.e. we can grant other companies the right to use the images).
-If you are taking pictures of an event and some trademarks appear in the photos, it may be hard for you to use the photos commercially if a reasonable consumer could believe that the trademark owner endorsed or supported the picture. Editing the photo to remove the trademarks may diminish this danger. It is typically much easier to use these types of images artistically and only to describe the event or a product or service depicted in the photo.
For companies using photographs:
-The piece of advice about securing the rights to use a particular photo go doubly for you! If you are commissioning the photo from a photographer that works as an independent contractor, it is difficult to secure all the rights through what some know as a “work made for hire” agreement. Photographers don’t always work directly for a company, so it is important to clearly iron out the ownership details of the image.
-If you do get the rights to a photo, make sure what you are doing conforms to these rights. If your agreement with the photographer said that the photos can be used in “online campaigns only”, don’t grant licenses to other parties that could result in broader uses (such as uses in video advertising or marketing brochures).