Lawsplainer: Could Nike have to pay damages for a runner’s slip and fall in Iceland?

TL;DR: Yes, quite possibly they could.

A couple of years ago Nike sponsored a competition in which runners who got supporters to log the most miles on the Nike+ app would win a “dream run.” The location of the dream run was also a contest, and the winner was Iceland. One of the lucky (or not so lucky) winners was experienced runner and coach Kate Martini Freeman of Los Angeles. During the second run of the trip, which apparently got off to a late, after-dark start due to travel delays, Freeman “dislocated her ankle and broke her tibia and fibula — requiring multiple surgeries.”

Trail running in Iceland

Hold on. How does any of that make Nike responsible? Freeman didn’t have to go on the trip.

I’m getting there. Just bear with me.

Fine. But you lawyers always do this.

We do. Sorry. Freeman’s lawsuit (here) also claims that Nike forbid participants “from using any equipment or gear that was not affiliated with and/or approved by defendant Nike.” The complaint also alleges that “Nike chose the routes and locations as well as the necessary running and safety equipment for the event.” Thus, according to the lawsuit, Nike was negligent “[i]n requiring participants to run a mountain trail in the snow and ice at night when it was unsafe to do so” and “[i]n requiring runners to only utilize equipment provided and approved by Nike.”

So Nike took what’s ordinarily an activity with some risk and made it more dangerous than it had to be?

That’s not a bad assessment.

Thank you. But that doesn’t change the fact that this runner could have decided not to participate or could have just used her own gear or could have just been more careful, right?

She probably could have done all of those things, yes. But they wouldn’t necessarily change the outcome of her case.

What? Why not?

Because in Oregon, where the lawsuit is filed , the courts have adopted an approach to negligence known as “comparative negligence” or “comparative fault.” Dust off one of those old Torts textbooks at your friendly, local law school library and you might find the old English chestnut of Butterfield v. Forrester from 1809, which (perhaps) gave birth to what is now known as “contributory negligence.” That doctrine was prevalent over the last couple of centuries and barred an injured person from recovering damages for his injuries if he contributed to the injury through his own negligence (no matter how slightly). Most courts, however, have moved away from that line of thinking toward an approach more like Oregon’s, i.e., an injured person can recover damages from another person up to the extent of that other person’s responsibility of his injuries (usually expressed as a percentage). Oregon’s legislature went so far as to abolish contributory negligence and the related doctrines of last clear chance and implied assumption of the risk.

All right. But even if that’s how these cases work, how does that make Nike responsible? They didn’t make Iceland and they didn’t make the weather.

True, Nike didn’t directly create the natural conditions that made the run risky. So in that respect, this isn’t a textbook premises liability case such as a retail store that doesn’t put out a “Wet Floor” sign or refuses to salt the ice on its sidewalks. In Oregon, however, the courts recognize a “duty to warn” in negligence cases. In 1988, the Supreme Court of Oregon wrote the following:

A defendant may be liable if the defendant can reasonably foresee that there is an unreasonable risk of harm, a reasonable person in the defendant’s position would warn of the risk, the defendant has a reasonable chance to warn of the risk, the defendant does not warn of the risk, and the plaintiff is injured as a result of the failure to warn.

That case involved a guest at a resort who died as a result of his attempting to save some children who were in danger of drowning in the surf (the state of Oregon was also sued because it had jurisdiction over the beach). Ultimately, the Court held that the suit should be dismissed because the complaint did not allege that the resort “knew or should have known of the dangerous condition of the ocean surf.” With that rule in mind, the case against Nike seems like it will boil down to the questions of whether Nike should have seen that there was an unreasonable risk of harm in the way they chose to conduct the dream run, whether Nike had a reasonable chance to warn of the risks, and whether no such warnings were actually given.

Running is not an inherently dangerous activity (says the runner). It certainly can become a dangerous activity without proper training or when a person runs under conditions that make the activity dangerous. I wouldn’t be surprised to find out that Freeman’s case will focus on the question: “Just how dangerous were the conditions in Iceland?” Every so often I get out and start a run only to encounter a torrential downpour before I can make it back. Weather can be unpredictable, but did Nike, nevertheless, have a reasonable chance to warn Freeman and the other participants that the trails were dangerous? Furthermore, did Nike create some of the dangerous conditions by requiring participants to wear only Nike gear. That’s a really hard question to answer. Put all of that together and–

Hold on! Surely Freeman must have signed some kind of release. Nike has better and more expensive lawyers than you, I’m sure.

Yes, I have no doubt that they do. But they’re not going to explain this for you, so you’re stuck with me.

Freeman very well may have signed a release, but that might not matter, given a recent ruling by the Supreme Court of Oregon involving recreation providers. As pointed out by Jim Moss of Recreation Law, the Court held that a release in a ski area ticket was void because it was unconscionable. According to Moss “By stating that any provider was subject to the public policy exception to releases, the court effectively found that anyone injured by a recreation provider could have their releases voided.” If Nike can be put in the same broad category as the Mt. Bachelor Ski Resort any release they might have had the dream run participants sign might not do them any good.

The bottom line is this: although there’s no surefire way to predict the outcome of this case, it’s not as far-fetched as you might think to believe that what looks like a not-so-out-of-the-ordinary slip and fall case that happened thousands of miles away really could leave Nike holding the medical bill.

Rock ‘n’ Roll Might NOT Be Here to Stay Thanks to the FLSA

Last October, Outside magazine reported that Saint Louis University School of Law professor Yvette Joy Liebesman had filed a lawsuit against Competitor Group, the San Diego-based company that runs the well-known Rock ‘n’ Roll Marathon series. The basis of her suit is that Competitor Group (“CGI”) owes its race volunteers wages under the Fair Labor Standards Act (FLSA) because they are really not volunteers, but rather employees.

Ms. Liebesman “signed up to serve as a bicycle escort for the lead group of female halfmarathoners,” according to her Complaint. As a bicycle escort she was required to provide a bicycle (shocker!), a cell phone (“to report any problems and the progress of the faster runners”), and a hands-free device for her cell phone. This, Liebesman claims, also violates the FLSA because she, rather than CGI, had to pay “for equipment that was necessary to carry out duties assigned by Defendant.”

CGI responded by issuing a statement calling the allegations “baseless” (another shocker!) and then filing a motion to dismiss the class action suit. On May 11, 2015, Judge Ronnie L. White of the United States District Court for the Eastern District of Missouri ruled on CGI’s motion.

His ruling (found here) will allow Liebesman’s case against CGI to proceed. That’s not to say that the class action will necessarily be successful in requiring CGI to pay all of its volunteers at least minimum wage, however. CGI argued both that its activities fall under an exception to the FLSA minimum wage requirements and that their volunteers really are volunteers and not employees.

First, claims CGI, they should fall under the exception to the FLSA that applies to “amusement or recreational establishment[s].” Liebeseman disputed that claim, but the Court held that the record before it was “not developed as to whether the ‘principal activity’ of the series was for amusement and recreation.” CGI also contends that because each race is a separate establishment that operates for only a certain amount of time, the exception applies because no race operates for more than seven months of the year. Again, however, pointing to the lack of a factual record, the Court did not decide that question of law and would dismiss the case based on the FLSA exception for recreational or amusement establishments.

CGI also asked the Court to dismiss the Complaint because Liebesman was not an employee under the definitions of the FLSA: she “volunteered only twice in two years [and] had no expectation of future employment with CGI.” Liebesman countered that the Court should apply the “economic reality” test and find that she is an employee. Once again falling back on the lack of discovery, the Court declined “to hold as a matter of law that Liebesman was not an employee of CGI.”

CGI can still move for summary judgment after the factual record has been developed, but it’s often the case with class action suits that the real battle is fought in the earlier stages. It seems to me that because Competitor Group’s entire business model centers around a multi-race series with thousands of race workers, having to pay them wages would either force them out of business altogether or require major restructuring. I can’t say whether the RnR series will decide that this is the hill that they want to die on, but, in the end, the choice might have already been made for them.

The other question that this case raises is what it means for the future of big road races. As an example, for good or for ill, when you step into a McDonald’s in Alabama you know you’re going to get pretty much the same thing if you normally go to McDonald’s in Idaho. The Rock ‘n’ Roll series, in much the same way, brings a known product to runners around the country.  I guess that makes RnR somewhat like the chain restaurants of road racing.

My first ever half marathon was at the 2012 Rock ‘n’  Roll Half Marathon in Virginia Beach. I can’t say that that was the best race I’ve ever run, but nevertheless, it was fun for what it was and getting to do a big race with my friends and with lots of other runners was enjoyable. For those of us in the middle and back of the pack, isn’t that what running is supposed to be about? If some folks are drawn to big productions like Rock ‘n’ Roll and they happen to turn running into a lifelong hobby along the way, I can’t see how that’s a bad thing. Who knows whether CGI will have to close up shop, but if they do I think that will be a net negative for the sport.

Dane Rauschenberg on NPS’s DVNP Safety Assessment and Badwater

Dane Rauschenberg definitely can lay claim to a more accomplished running career than I can.  The blurb from his first book gives you an idea:

While working a full-time job in the greater Washington D.C. area, Dane ran 52 consecutive weekly marathons, starting with the first weekend in January and going until December 31st. In addition, he also raised over $44,000 for the Mobile, Alabama chapter of L’Arche, an organization which benefits the developmentally disabled, and did all of this out of his own pocket with no corporate sponsors.

By the publishing of his second book he had already run 100 marathons. I say all of that simply to say that as between the two of us, he is probably the one who is far more likely to have ever actually lined up to attempt the Badwater 135.

As you can probably imagine, Dane is not particularly happy about the affect the safety assessment will have on Badwater.  An excerpt:

Ignoring that they don’t know that “ultramarathon” is not hyphenated is the utter ludicrous notion that some visitors have asked why some people can do something and they cannot. Because that is how permitting, genetics, the law, power, prestige and about 8 billion other things work in the world we live in. Some people can do some things as and others cannot. If that fact isn’t enough of an explanation how about the fact the average visitor is an overweight person who had no idea what it takes with regards to years of highly regimented training specifically designed to get them through the hot dry blast furnace that is Death Valley in July?  Plus, why does the DVNP all of a sudden care about the well-being of runners? The race has been run, with a large amount of publicity, for decades. It hasn’t been a secret. This paragraph in and of itself is so insipid it is hard for me to go on. But I will try.

Go here to read the rest.

Bad News for Badwater 135 in the Death Valley Sporting Event Safety Assessment

Go here for the full pdf.

This is the safety assessment that I wrote about a while back when discussing the interplay between the Badwater 135 and administrative law. I haven’t finished reading the full report, but from what I’ve skimmed so far, it looks like Badwater 135 as we know it is dead. While the report refers to a number of sporting events, Badwater is specifically named in more than a few places. Take for instance, this paragraph:

One of the past permitted running events, the Badwater Ultra-marathon, takes place in July. Visitors have questioned why the park allows running events to take place during the hottest time of the summer, when they are advised not to engage in outdoor physical activity. By permitting events to take place during summer months, the park has provided a mixed message to park visitors and other users.

The average visitor, of course, is not a highly trained ultramarathoner who is familiar with the amount and types of training that go into preparing for Badwater. AdventureCORPS doesn’t let just anyone line up in the middle of July to try to run 135 miles in the blazing heat and up the side of a mountain. To say that allowing people who have been identified by race organizers as capable of attempting the race and who have put in months (if not years) of training sends mixed messages to people who are ignorant of those facts is, I think, a cop-out.

In days gone by, passengers used to be able to take a peak at the cockpit of the jetliner they were riding in, but that didn’t mean that they could sit in the captain’s seat and have a go at the controls. It didn’t send mixed messages to them about whether it was safe for anyone to fly an airplane, only the message that those who were trained to do the job can do it safely, but amateurs shouldn’t expect to meddle. I think similar logic applies here. The only mixed message coming out of this report revolves around why NPS decided to suddenly become so concerned for the safety of participants in these sporting events and the park rangers working around them only after they’d been going on for several decades.

NPS sets out a laundry list of supposed “Unsafe acts observed by event monitors, violations of permit conditions, and violations of state laws” (see page 7).  Among that list are things like “Insufficient and inadequate event signage and placement,” “Failure to report injuries, illnesses, and medical treatment provided to participants,” and “Event aid stations located too close to road or in less than desirable locations.” That would seem to be pretty damning evidence for event organizers were it not for the stunning admissions that NPS makes in the paragraph that immediately follows:

In past years, the park has not consistently monitored events or verified that permit holders or event participants were complying with all provisions of event permits. The following weaknesses of the park permit program were noted:

  • Limited communication with permit applicants and event coordinators prior to and after some events.
  • Insufficient number of monitors and failure to monitor past events, especially night events.
  • Limited follow-up with event coordinators on permit violations.
  • Limited documentation and lack of citations to permit holders and participants when violations of permits were witnessed.

In other words, NPS admits that it failed to do its job. If, for instance, you get permission to hold an event and it says that you may only place aid stations in designated areas and they must be a certain distance from the road, whose fault is it if NPS, due to its “Limited communication with permit applicants and event coordinators prior to and after some events” never tells you where those designations are and how far back from the road they should be set up?


Not an aid station or support vehicle in sight.

Again, on page 10, Badwater is called out for special attention regarding reporting of injuries. According toNPS, “between 2006 and 2012 there were no injury reports submitted from anyof the permit holders as required as a condition of issued permits.” The report then goes on to reproduce the injury report that AdventureCORPS made in connection with the 2013 Badwater race. If NPS wants to claim that reports like the one made by AdventureCORPS were inadequate in some way, then it’s incumbent upon them to make sure that race organizers know what’s expected of them. Given NPS’s admitted failure to communicate with race organizers, it stands to reason that NPS failed in that respect as well.

Section 3 documents some of the report’s recommendations. Section 3.4 sets out requirements for weather, dates, and time that spell doom for Badwater:

  • Night/evening events will only be permitted on paved roads and for calendar dates during a full moon phase.
  • Events will not be permitted for locations in the park below 2000 feet during the day between June 14 and September 9, between 10 AM and sunset, when temperatures historically reach 110 °F (43 °C).

If they were looking for a way to specifically kill Badwater, then they found it. If you scroll down to the park map in the appendix you see that most of the paved roads in the park are located below 2000 feet.

Section 3.6 designates all of the roads that may be used for events as well as the areas that may serve as starting or finishing areas. I’m not familiar with the layout of the Badwater course, so I’ll leave it to those who do know the course to say whether those restrictions would further affect Badwater.

In section 3.9 we find this: “Verbal communication and passing of objects between participants and support vehicle occupants while the vehicle is moving is prohibited.” I understand the concern associated with trying to hand something to a cyclist or a runner while a vehicle is moving. Aside from requiring the vehicle to slow to a crawl it requires the driver to divert his attention from the road ahead in order to avoid a collision with the athlete. What I can’t quite understand, however, is why verbal communication should be prohibited as well. Is it really that unsafe for an occupant of a vehicle other than the driver to open up window and shout something back to their athlete? It doesn’t seem so risky to me that NPS should have to ban it altogether.

Section 3.12 sets out requirements for permits to be granted to running events. Among them we find this (which also applies to cycling events):

All participants and teams must use personal portable toilet products for use on the course wherever toilets are not available. Such products must be used discreetly and must be disposed of properly after use. Public and/or unsanitary practices by participants or team members may result in citations and fines. Personal sanitation devices shall not be disposed of in vault toilets.

I’m not quite sure what a “personal portable toilet product” is, but I can appreciate the need to prevent people from leaving human waste strewn about the park on the side of the road. Again, however, I’m left to wonder why NPS didn’t just leave it at that. But no, they go on to require that you have to relieve yourself “discreetly” and warn that doing so “publicly” can result in citations and fines (and, presumably, suspension or even cancellation of the event). I can only speak for myself, but I tend to try to be as discreet as possible when nature calls during a long run; others are not always so bashful. Regardless of personal preference on that particular issue, does NPS really want event monitors keeping their eyes out for waste disposal activities that are just not quite discreet enough? If that experienced ultrarunner (from years of doing their business out in the open air) has a somewhat relaxed idea of what “public” means is that sufficient reason to put the event itself in jeopardy?

Section 3.12.1 sets out additional requirements for ultramarathons. According to NPS “the ultra-marathon presents additional and different hazards for visitors and support teams.” That seems like a fair point, but looking at the additional requirements, there just doesn’t seem to be very much there that isn’t already repeated elsewhere. Support vehicles are required to “leapfrog” runners (although the report doesn’t say exactly what that means), but that’s something that’s required elsewhere in the report of cycling event support vehicles (at least in certain places in the park).

Section 3.13 contains “Other Recommendations” and includes details about the permit application process. Permits are granted on a “first submitted basis” and “[h]aving previously held the same or similar events in the park does not guarantee the same event will be permitted every year, nor will it give preference to the event if another application is submitted for the same time period.” That presents an issues not only for AdventureCORPS and Badwater, but for every event organizer that has historically held events.

Scanning down, we find that event organizers must submit an event plan that must include a “[d]escription of why it is important that these activities take place within Death Valley National Park and not on public lands elsewhere.” It seems to me that for so-called “public lands” the only reason that the public should need regarding why they want to hold an event in DVNP is that they want to hold it there and not somewhere else. Why did NPS determine that they must have an explanation like this? To me it just doesn’t seem relevant to what they are supposed to be doing, i.e., insuring that people have access to use the park and that they are safe while there. Beyond those concerns (and the concern of preserving the park) why anyone wants to use the park really is none of their concern.

Some of the requirements for events (one support vehicle for each participant, number of support team members, etc.) were already implemented by AdventureCorps for the most recent Badwater races. That requirements very similar to what race organizers had already put in place seems to suggest that, perhaps, NPS took some input from event organizers into account.

Having read through the report (not a close reading, I’ll admit) it doesn’t seem to me that if all of the recommendations are implemented it will be too exceedingly difficult for event organizers to continue to use DVNP for sporting events. At the same time, events like Badwater that relied on the harsh conditions of the park to give a unique character to their event would seem to be over for good. For the NPS that may seem to be for the best, but for the world of ultrarunning it might not be so easy to say farewell to the world’s toughest footrace.



Rim to Rim to Rim to . . . nothing?

Over at the TrailRunner Magazine website, Alex Kurt has written a short piece entitled “Are the R2R2R’s Days Numbered?”  R2R2R is trail runners’ shorthand for a Rim to Rim to Rim crossing of the Grand Canyon; you can see the “basics” on that topic from Ultrarunning Magazine here.

256px-Grand_Canyon_colorsKurt writes:

Crossing from the Canyon’s south rim to its north rim—or for more ambitious types, there and back again—is a challenge that draws many of the roughly 15,000 people who visit the Canyon’s corridor (where the rim-to-rim route runs) each year, and that number is growing. The mystique of recent speed records for the rim-to-rim-to-rim routes, as well as the challenge and beauty of the low desert, has ensured an increasing number of that swelling visitor log is filled with runners.

But according to reports, the number of visitors—including runners—along the corridor route could soon be restricted.

Rachel Bennett, an Environmental Protection Specialist at Grand Canyon National Park (GCNP), says concerns of overuse have spurred the potential changes.

You might be inclined to think that having 800 visitors in backcountry that totals more than 1.1 million acres would not present a tremendous environmental concern–at least not one sufficient to trigger a review of the park’s Backcountry Management Plan. The key, however, likely lies in the fact that the popularity of R2R2R leads to many of those visitors being in the same general areas at the same general times. If runners take the advice of publications like Ultrarunning Magazine then a lot of them are going to show up at around the same time of year, line up at the same trails, start their treks at the same times, and be on the trails for close to the same amounts of total time.

This is a generalization, of course, but in my limited experience the trail running community is very environmentally conscious. They want the trails they run to be there for themselves years from now and the generations of future trail runners. In fact, running clubs across the country are often the ones who take responsibility to maintain the trails that they run. With that in mind, it seems to me that it is either other visitors (and not trail runners) who are responsible for the increased litter or it is a very small subset of runners who do not share their fellow runner’s concern for the trails that they use.

According to Kurt’s piece Bennett said that “With this planning process, there’s a fear that we’re limiting access, but we want to understand what’s going on before we would place any limits on anybody.” Hopefully, officials actually do what Bennett suggests and get enough helpful public comments to allow them to see that Rim to Rim to Rim activities can continue without doing damage to the park. As I’ve written about in the past, these plans are not always based on informed decisions and once made they can be very difficult to challenge in court and even harder to actually get changed.


“Sherpa John” Lacroix’s Tips for Race Organizers

At his website, Sherpa John has a three part series on what it takes to put together a trail race. It is, perhaps, a commentary (a somewhat sad one, depending on whom you ask) that he devotes fully one-third of his series (so far) to the permitting process. An excerpt:

Anytime you are gathering a large group of people to use public lands, especially if you are accepting payment to do so, you need a permit. Parties who could require permits are Town/City and County Governments, Bureau of Land Management (BLM), United States Forest Service (USFS), Open Space and Mountain Parks (OSMP), and some of the above even require you obtain special written permission from private land owners before a permit is issued.

. . .

So go back to the course you’ve planned. Take a look at the map and determine if your route goes over any Wilderness or other Federally Protected Areas. If it does, kiss the idea of obtaining a permit good bye. In most, if not all, cases.. you CAN NOT obtain a permit for special events in these areas. There is no loop hole, there is no “what-if.”

Given the sheer number of permits that might be required for any given event, I suppose it shouldn’t be much of a surprise that nationwide organizations like Tough Mudder find it necessary to employ in-house attorneys (although they have a different set of legal issues than a lot of other races).

Running (and trail running especially) owes a significant part of its popularity to the fact that people view it as an escape. For most people the permit process remains, thankfully, in the background. For race organizers, however, Sherpa John’s post just goes to show that even at a trail race out in the middle of nowhere, you’re probably not escaping civilization as much as you think you are.

Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

A participant in a Warrior Dash 5k was seriously injured when he dove into a mud pit head first, at the urging of one of the event’s emcees. Although his negligence claim was dismissed, race organizers could still be held liable if they are found to be grossly or willfully negligent.

Recreation Law

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive…

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220px-Richard_NixonPresident_Barack_ObamaThis month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama…

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Mark Remy Muses on Proof Race Photos

If you’ve run a race in the last several years you’ve received an email from MarathonFoto, Brightroom, or a local race photo company letting you know that you can look at the pictures they took of you.  Low-resolution, watermarked proof shots are there to persuade you to pay for a print or full-resolution digital copy.

HereRunners World regular Mark Remy debates with himself (sorta) about whether clipping those proofs with a screenshot and posting them online is okay.  He doesn’t seem to see a big problem with it, but MarathonFoto obviously disagrees and says so in the comments section.

Under federal law “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Works of authorship is defined to include “pictorial, graphic, and sculptural works.”  Interestingly, copyright protection under federal law exists automatically; registration of a copyrighted work is only required in order to maintain a copyright infringement suit.  You can read more (if you’re interested) in “Copyright Basics,” published by the Copyright Office.

Generally speaking, the owner of the copyright has the exclusive right to reproduce works of authorship.  Anyone else who reproduces a work may be committing copyright infringement under federal law (assuming their use of the work does not fall under one of the recognized exceptions).

Perhaps the most famous (or notorious) of those exceptions is “fair use.”  The doctrine originally developed in the courts as part of the common law, but is now codified in the United States at 17 U.S.C. § 107.  Generally speaking, using a copyrighted “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  It’s not enough, however, to simply claim that one’s use of a work is covered by one of those categories.  Courts will look at several factors in determining whether one of the exceptions applies: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

So is sharing these race photos in the way that Remy describes allowed?  Almost certainly not, in fact, I’ll go ahead and make that a definitive “No!”  Incidentally, Remy circled back to this topic a few weeks ago to get the opinion of an attorney (spoiler alert: she agrees with me).

None of that’s to say that this particular corner of intellectual property law is good policy, but that’s the gist of the law as I see it.  I tend to agree with Remy’s original article that the photography companies who post these proofs do not lose income over people sharing them to social media, but (as his interview with the attorney points out) you’re not likely going to win that point in a copyright infringement lawsuit.  I would say that a copyright infringement lawsuit is rather unlikely against any particular individual, but we have the RIAA lawsuits against individuals who downloaded songs that makes such a suit by MarathonFoto or others, perhaps, not so far-fetched.