Swiss photographer sues Apple for pilfering her eyeball A Swiss photographer has filed suit against Apple in a US District Court in New York, alleging that Cupertino's marketeers used one of her photos without her permission in its MacBook Pro with Retina Display flack attack. "Despite representing that it did not intend to use the photo and knowing that it had not obtained a …
Maybe Apple will get an EARfull for that EYEpull?
All Aplle had to do was just put on a new layer various strokes, some rouge, new eyelashes, and a generic, uncopyrighted face. What? Is Apple too poor to just do it legit?
Ironic, that an artsy firm lifts well-known or violations-discoverable works of a represented and known Artist.
It sounds like they may have paid for a specific-use, some people do license on a 'not to be used in advertising' basis after all. So I don't think it sounds like a case of, she's been paid but wants more. Sounds more like they may (or may not) have paid something, but didn't have permission to use the image in the way they have.
The only way we'll know is if it goes to trial, except it won't because they'll likely settle
If the license Apple bought explicitly denied use for commercial purposes, she hasn't been paid.
Particularly dealing with a fashion photographer I'd expect that sort of license requirement and Apple were just plain stupid to not pay attention to the details. I mean they're dealing with the only people on Earth who more vigorously protect their copyrights than Apple does. Apple would be smart to settle out of court by just asking "how much should the check be?"
> Will have paid one of those photo depositories but she wants more.
Did you read a different article to rest of us or is that just wishful thinking?
The photograph, taken by fashion photographer Sabine Liewald, was obtained by Apple from Liewald's New York agent, Factory Downtown, for "comping"
I know that bit was probably just past the first page on your idevice but if you swipe your finger gently upwards on the screen you should be able to read the entire article.
... or, Apple could have just paid a little license fee and showed some appreciation ... but hey, "We're Apple. We can do what ever we want" ... remember, these is the same company that cries foul, all the time, over design choices other companies include in their products, Apple considers it their own design ...
Possibly but there are usually many checks to ensure content is correct and appropriate for use. It seems a little odd that this slipped through the net. That having been said, I do agree with you, it was probably an oversight.
"It's almost certainly an oversight. Big companies don't normally knowingly invite lawsuits over what - to them - are trifling amounts."
I upvoted you (I think you're bang on the money), as for the 5 downvotes, it must be the linux Jihad started against you.
I very much doubt this was "We're Apple, we can do whatever we want". If you've ever worked with anyone from marketing, they really don't get anything other than "ooh look, pretties". They made some comps using this image, showed it to someone higher up in marketing who just looooved it, and then it went on from there. It is marketing 101 behaviour.
The creative types yes. But every successful marketing department consists of at least one business type paired with one or a few creative types. And nothing gets done without the business type's okay.
...
Alright, the reality is nothing get done without the business type pushing it.
I know to my cost that this is not all that uncommon.
This is what has happened to me (three times so far)
Photographer takes a snap and puts it into a photo library.
Company Ad agency sees snap and says 'we like that and are going to use it'.
Ad agency pays library and they use the snap.
Ad Agency neglects to pay Photorgrapher
Snapper sees ad beingused and wonders why they have not been paid for it's use
In my case, I issued a DMCA Takedown notice for breach of copyright. This got the Company's attention. I got a very nice letter from their lawyers explaining that they had indeed paid a licence for said images. They included the details of the payments made to the Photo Library.
I removed all my images from the Library and sued them for triple damages just like the RIAA do to unfrtunate downloaders. Remember here that they had been paid for the images but hadn't paid even $0.01 to me.
They ignored my suit until I won and sent in the bailifs.
The snapper here should probably have sued the library but hey it's Apple (or rather their Ad Agency) who has used it so lets sue Apple and get some free publicity.
Perhaps you may want to re-read the account of what happened? There was no library involved, Apple got the thing FROM THE ARTIST'S AGENT for comping, then used it in publication.
If you follow the link that El Reg provided, you'll see that the agent (Factory Downtown) is nothing like a library, and everything like a, well, agent.
"The snapper here should probably have sued the library but hey it's Apple (or rather their Ad Agency) who has used it so lets sue Apple and get some free publicity."
No..
The snapper should sue the GUILTY party. The ones who did something wrong.
The objective here is to get the artist fairly compensated for their work. Compensation paid by the person or organisation that used the image without permission. Not to find an arrangement of references, anecdotes of limited relevance, and omission of fact that make Apple look like the injured party.
"The snapper should sue the GUILTY party. The ones who did something wrong."
Ideally, prior to suing, the snapper should simply send them a letter or email pointing out the infringement and stating their normal fees for such usage. We've no idea here (because the article doesn't tell us), if she skipped directly to the lawsuit or if there is some dispute. Lawsuits should not be a first resort and you can often get a quicker resolution without them.
Nope, been there, done that, bought the tee shirt. It rarely ends well.
First letter is always a registered letter from the lawyer spelling out exactly what has to happen. Problem is Jobs had an ego the size of the former Soviet Union, and infused his company with it. They get that kind of letter and their immediate reaction is to fight it. Big mistake. Especially going up against the only industry where everybody has an ego just as big as Jobs did.
It's not like the photo wasn't available for sale....
True, but they didn't buy it did they?
I agree it should be negotiated rather than litigated, but she's well within her rights to go straight to suing. Lets face it, Apple can't exactly complain about anyone deciding they don't want to negotiate (at least not with a straight face)
You think apple has nicked your photo and you think 'I know, I be fluffy and "fair" and write to apple, no need for courts here.'
(You can already see where this is going, can't you)
2 years of being ignored by apple (and probably being threatened with countersue's) you decide to take it to court.
Like you should have done in the first place as it will get their proper attention from day one.
"Seems exactly like the sort of thing that could be resolved by simple
negotiation instad [sic] of wasting the courts' time"
That's what the agent should have done. That's what agents do. That's why photographers use agents. Baffled as to why people comment on stuff they know jack about. Perhaps people just like to parade their ignorance?
"How do we know that attempts weren't made at negotiation?"
Attempts ARE being made at negotiation.
Slapping in an official legal complaint and demanding a trial ARE negotiations. It's establishing a strong position in negotiations and displaying a willingness to go the distance. Anything else is just a vague, empty threat.
It won't go to trial, and that is right and good, because a trial would clearly be a waste of time and money. I'm still not sure why the article vaguely implies that a Settlement rather than Trial would be less of a positive result.
"Seems exactly like the sort of thing that could be resolved by simple negotiation instad of wasting the courts' time."
If they haven't already tried negotiation the court would send them to arbitration before hearing the case.
Unless the artist is launching the suit first to get publicity, you'd assume Apple didn't like the invoice she sent.
After all when the biggest tech company in the world has seemingly publicly broken copyright so blatantly she'd surely up her rates a bit.
A simple phone call? Probably not. I live in Switzerland, and it's funny, because I always hear the Swiss make fun of Americans for being sue-happy. But they also pretend they don't like to drive cars, shop on Sundays etc. you should see the traffic when a store is opened on a Sunday...
Why should she make the phone call? Apple couldn't be bothered, they just went ahead and used the photo, maybe by accident, maybe on purpose. Calling them up and getting the regular fee won't remind them that they shouldn't do that sort of thing, taking a big buck out of their pocket may.
This post has been deleted by its author
She produced an image which was good enough to be used by a mega-corp in an advertising campaign. Said mega-corp (and here it really doesn't matter who) used the image for commercial purposes against her wishes and she is sueing them for damages as a result.
If you were good enough to produce an image to be used in such a way and it was used without your permission you too would be pissed. And this is happening to photographers, both amateur and professional, far too often.
Hope she does "make a packet from them using a picture of her green eye".
You've made a very important point - this is happening to photographers far too often. Maybe she could have just made a phone call and Apple would have paid her but that way would it have got into the news.
Corporations large and small need to realise that they aren't God like and the rules that apply to people like you and me also apply to them.
It probably was an oversight by Apple but it could well have been "We're Apple, you're a nobody so be grateful that we think your work is good enough to advertise our products".
I really hope she publishes the final settlement figures.
Part of the settelment will be that she can't publish or share the terms of the agreement. We will never know how much they give her. Which is good for Apple as it keeps people from suing all the time but sucks for photographers because you don't know how much to really ask for.
My educated guess (having sold a few photos) is $5k total settlement with the shark taking 1/3. But it's unlikely we'll ever know...
"My educated guess (having sold a few photos) is $5k total settlement with the shark taking 1/3. But it's unlikely we'll ever know..."
Hell, no. Much more.
A trial would be negative publicity and expensive to the tune of $100ks. Apple will pay ten times your stated amount to avoid that. And frankly: She has their balls in a vice right now.
...Of Apple taking something someone else has done (once again, as per Steve Jobs in 1996, "shameless about stealing great ideas") and using it as their own without a care for the true owners of that IP. They did it with the SBB clock, and they did it here...and they did it at Xerox way back when. The difference here is that the creators of these items of IP made sure they owned the rights to them.
Now Apple is getting some of their litigious medicine. Good.
This is just one step removed from the adverts you see with an iStockPhoto logo somewhere on them. Someone used a temp image and no-one remembered to change it before publishing.
Of course that doesn't make a good story so instead it's Apple deliberately stealing things. I'm surprised the writer didn't go so far as to implicate Tim Cook and the ghost of Steve Jobs in the theft...
Google's accidental inclusion of 7 test files and copying of 9 lines of production code was sufficient for Oracle to sue for 'six billion dollars' - that's how grown-ups play these days.
Personally I was most disappointed to learn the infringing photo had almost certainly not been taken with an iphone (yes I know how Apple spells it), but by a professional photographer. I had been so impressed by the photo that it was the only reason I was thinking of buying several iphones and ipads. They would clearly make me creative enough to take such a good photo myself. The tech specs and interface are of no interest - all phones are very much the same and just as easy to use as each other once you have had a few days practice. But the boost to my personal creativity - for that it has to be Apple! I am sure many, many other people would agree with me.
Now by Apple's documented courtroom logic that makes them liable for all profits for any device that they ever marketed with that image.
Jackpot!!!
"Personally I was most disappointed to learn the infringing photo had almost certainly not been taken with an iphone (yes I know how Apple spells it), but by a professional photographer."
So we're back to blatantly fraudulant advertising, like all the cool stuff Siri was supposed to be able to do. <sigh>
>that's how grown-ups play these days.
No, that's how six year old's play and always has been, proper grown-ups are pragmatic and willing to compromise, but there are fewer and fewer of them around these days.
We (and I do mean this collectively) appear to be losing our ability to empathise and tolerate differing points of view.
We're in deep poo.
It's a shame that there isn't something applying to companies like the 3 strikes law (Hadopi?) which IIRC applies to ISP customers in France. That's two shots now, for Apple (assuming the lady wins). One more and the entire company gets disconnected from the Internet for 6 months. That could be a laugh. Certainly it would get them to behave better.
It's like a power I think the UK Information Commissioner should have, if you don't look after data properly or process it within legal boundaries and the terms under which it was obtained from consumer etc, then your registrations is revoked and your computers (assuming it's electronic) or other appropriate filing systems should be confiscated.
But to me, expecting payment whenever someone uses a picture you took of an eye sounds like a right rip-off. Not dissimilar, in fact, to expecting payment because you invented a rectangle with rounded corners.
Possibly there's more to taking such a photo than meets the eye, but then possibly there's more to designing a rectangle too. But to the layman they look similar.
Some of my software has been in use for near on 40 years now. I'd say that took rather more effort and inspiration at the time than snapping a picture of an eye, but somehow I only got paid the once for it. I'm not complaining (that was the deal), but I'm just wondering what makes photography so different??
"But to me, expecting payment whenever someone uses a picture you took of an eye sounds like a right rip-off. Not dissimilar, in fact, to expecting payment because you invented a rectangle with rounded corners.
Possibly there's more to taking such a photo than meets the eye, but then possibly there's more to designing a rectangle too. But to the layman they look similar."
So how many shots of that quality have you taken? Do you also believe musicians, actors and painters should just give away their art as well?
Obviously you don't realise that a unique shot like that can be sold for many thousands of dollars in a gallery, but now its on every Apple ad so its so common its virtually worthless. There is a definite tangible value that has been taken from the photographer, that's why photographers charge licence fees.
A 2 year old can draw a rectangle. A 2 year old layman can also tell the difference between a photo and a rectangle.
If it's that easy to get a photo of an eye, why didn't they just take one themselves? It'd be easier than trawling image libraries etc. to find one.
But obviously they wanted an image of a certain quality and impact and for that you have to pay.
This very thing came up recently with an art history textbook. There was a problem with image licensing and of course and obvious response that came up was "well, take you own pictures". Crowd source them if you need to.
...not to mention the differences between Patents and Copyrights being glossed over here.
If this were like the rounded rectangles patent, no one else would be allowed to take their own picture of an eyeball.
> Some of my software has been in use for near on 40 years now ... somehow I only got paid the once
Do you own the copyright on that software?
If so, you have to right to be paid every time it is reproduced. If you decided to sell that copyright to someone else then you have been paid all you are going to get for it.
Vic.
There is no difference between taking a photo and creating a work of software.
If your contract assigns the copyright to another entity, then you'll get nothing further than what the contract said.
Most photographers accept both kinds of contract - maybe employed by a studio, then the studio owns the copyright on the photos, maybe they pay the studio for the time and own the photo copyright themselves.
If Apple does something, it, by definition, is original. They cannot be copying. If you accuse them of it, you obviously do not know what the word means.
If you are a competitor, you are copying their stuff. If you say you are not because you were using the idea 10 years before Apple did, you still do not correctly understand the word.
Copying means doing anything that may affect their profits - nothing else. You could make a sperical phone with 32 hexagonal buttons, a crescent shaped screen, had a UI based on Lcars and Apple would still sue you if it was faster, cheaper and easier to use and outsold them.
They could send someone into your labs one night and photograph your plans. This is not copying because it um.....
Well it isn't!
I have come across an interesting "bug" in an Apple's software product which results in a directly provable offence against US copyright law. Interestingly, Apple's T&Cs of their forums bar any discussion about it, so my public question about it got zapped, and never answered.. That's OK, I have a record of the post and its takedown, so they cannot claim I never warned them.
Its particularly rich that a hyper IP-conscious company like Apple would commit such an obvious and high key infringement.
I suppose it could be an honest mistake, but I have to admit that as a photographer who has had multiple photos taken and blatantly used commercially without my authorization or knowledge by a large international company, its hard for me (given my past) to not get rather upset at a situation like this. Because they do know better.
My situation was lower key, and I simply asked them to cease and desist and never asked for money. They eventually did after claiming first that:
1. They could use anything they wanted that they found off of the net
2. That I didn't have a copyright on the photos
3. That their usage wasn't commercial
All claims that were patently (forgive the pun) false. It was used as advertising for chrissakes.
Looking back at the incident now, I should have just invoiced them ('Nothing personal, its simply business, I hope you understand.' ) and then followed up with a lawsuit for bad faith infringement if they didn't pay - because the damage was done as soon as I took issue with the infringement. Foolishly I thought that by being reasonable and trying to work things out professionally we could reach a mutually agreeable outcome.
Every individual and company is different. There are some real slimeballs out there. Watch your step.
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