Once Again Apple Uses Image It Didn't License: This Time Photographer Sues

from the don't-they-have-lawyers? dept

Tue, Oct 16th 2012 1:56pm — Mike Masnick

Lawyers for big companies tend to be notoriously careful to make sure the companies license images they use for marketing purposes, for obvious reasons. And yet... Apple seems to keep using unlicensed images. It's really quite surprising. A couple of years ago, we wrote about how the default wallpaper for the iPad was used without licensing it. In that case, the photographer, Richard Misrach, was thrilled, saying that he was sure that a contract was on the way, and whatever was in it would be fine: "I'm sure they'll send me [a contract] quickly now. But I'm very happy, I'm sure it's fine, and the terms are good." I don't know if that experience made Apple confident it could do the same sort of thing again, but Misrach's response is not quite the norm. And Apple is now discovering that as it will have to deal with a lawsuit from photographer Sabine Liewald.

As detailed at the Patently Apple site, Liewald has sued Apple, claiming that it used her photograph as part of the marketing around the MacBook Pro's promotion for its Retina Display.

The first link above, to the MacObserver story, notes that Apple is now using a different (though similar) image of an eye. However, Liewald claims that Apple had requested Liewald's image from her Factory Downtown page, but for layout purposes only. It sounds like someone then got confused over whether or not they had actually licensed the image. Again, it's really surprising that Apple isn't a lot more careful about this kind of stuff. Liewald is apparently claiming that she's entitled to both "actual damages including defendant's profits" and statutory damages. That sounds like a lawyer just trying to push the company to settle faster -- and I wouldn't be surprised if Apple cuts Liewald a decent check pretty quickly to make this go away. I can't imagine that it pays to fight this lawsuit.

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Filed Under: copyright, license, retina display, sabine liewald
Companies: apple

42 Comments

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DannyB (profile), 16 Oct 2012 @ 2:31pm

Don't they see the irony?
Don't they have lawyers? Of course they do.

Don't they see the irony in suing over trivial intellectual property, and then infringing upon others' intellectual property. At least be consistent.

Steve Jobs: they shouldn't steal our technology, they should invent their own.

Now leaving aside for the moment whatever we might think of round corner rectangles, bouncy scrolling, double tap, etc; if you believe in IP, then shouldn't you be extremely respectful with other people's IP?
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- Anonymous Coward, 16 Oct 2012 @ 2:43pm
  
  Re: Don't they see the irony?
  Its the age old adage:What's Apples is Apples and what's everyone else's is Apples as well.
  
  Apple suffers from an extreme case of self entitlement.
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  - Me, 17 Oct 2012 @ 3:04am
    
    Re: Re: Don't they see the irony?
    Apple users suffer from the same thing...
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- Zakida Paul (profile), 16 Oct 2012 @ 2:59pm
  
  Re: Don't they see the irony?
  Apple's lawyers are too busy looking for ways others are infringing their IP that they don't have time to make sure Apple aren't doing any infringing.
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- Anonymous Coward, 17 Oct 2012 @ 1:27am
  
  Re: Don't they see the irony?
  of course, unless you are Apple or one of the entertainment industries, who also dont give a toss about infringing others rights or property
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 16 Oct 2012 @ 2:46pm

You always leave us hanging on the /interesting/ points:
"I'm sure they'll send me [a contract] quickly now." -- Well, did they? -- And if not, what's he out? He still has his original image, right? -- And then, where does it fit into the Techdirt "exposure is so valuable you don't need to be directly paid" notion?
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- Mike Dee, 16 Oct 2012 @ 3:07pm
  
  Re: You always leave us hanging on the /interesting/ points:
  I find it interesting how you cry about piracy but never hold your beloved corporations up to the standard of copyright and related subjects.
  [ link to this | view in chronology ]
  - abc gum, 17 Oct 2012 @ 5:02am
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    It's called hypocrisy, apparently some are blind to it.
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- Zakida Paul (profile), 16 Oct 2012 @ 3:13pm
  
  Re: You always leave us hanging on the /interesting/ points:
  Miserable little scrote. Complain every day about the writing style of the various contributors and still comes back. Idiocy.
  [ link to this | view in chronology ]
  - Anonymous Coward, 16 Oct 2012 @ 5:37pm
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    Some turd clearly wasted good money on grammar lessons for him. Newsflash: education is only effective when you're not a screw-up like out_of_the_ass.
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- MrWilson, 16 Oct 2012 @ 4:49pm
  
  Re: You always leave us hanging on the /interesting/ points:
  I /so/ missed the /use/ of forward /slashes/ for /emphasis/ while you were /gone/.
  [ link to this | view in chronology ]
- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 16 Oct 2012 @ 7:58pm
  
  Re: You always leave us hanging on the /interesting/ points:
  Reposted to avoid censorship:
  
  "I'm sure they'll send me [a contract] quickly now." -- Well, did they? -- And if not, what's he out? He still has his original image, right? -- And then, where does it fit into the Techdirt "exposure is so valuable you don't need to be directly paid" notion?
  
  When will you guys learn that the report button isn't made to shut people up?
  [ link to this | view in chronology ]
  - Anonymous Coward, 16 Oct 2012 @ 11:16pm
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    It's called public moderation and it exist for the sole purpose of cleansing the bullshit. Like the filth you spew from your sewer hole of a mouth. "I mean fingers I think.."
    [ link to this | view in chronology ]
  - Anonymous Coward, 17 Oct 2012 @ 3:55am
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    Seriously, this again?
    [ link to this | view in chronology ]
  - Ninja (profile), 17 Oct 2012 @ 4:21am
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    Oh the child is back! Click the pink link dear, you'll see magic happening as the comment is suddenly shown again. Go ahead, we are right here supporting you!
    [ link to this | view in chronology ]
  - Anonymous Coward, 17 Oct 2012 @ 7:46am
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    When will you learn that REPORTING a comment is not CENSORSHIP?
    
    I know the answer is "never", but here's hoping you figure it out eventually.
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  - Anonymous Coward, 17 Oct 2012 @ 8:41am
    
    Re: Re: You always leave us hanging on the /interesting/ points:
    Reposted to avoid censorship:
    
    Now that went well!
    
    When will you guys learn that the report button isn't made to shut people up?
    
    When jackasses like you stop calling it censorship.
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- Ninja (profile), 17 Oct 2012 @ 4:19am
  
  Re: You always leave us hanging on the /interesting/ points:
  ootb, you are confused. Sit down and take a deep breath. Now read carefully: this article is about commercial exploitation of the work. And file sharing clearly is not commercial exploitation.
  
  I know, it's hard for you, maybe even shocking. But you'll have to deal with this fact.
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iNetMANN, 16 Oct 2012 @ 3:18pm

Romey called it!
Obviously Apple thinks they are part of Romney's 47% that think they are 'entitled'.
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- Zakida Paul (profile), 16 Oct 2012 @ 3:23pm
  
  Re: Romey called it!
  There's a thing. Romney goes on about how 47% feel entitled to government handouts but ignores the fact that his rich pals in the biggest corporations feel entitled to government assistance in maintaining their monopolies. Hypocrisy and double standards? I think so.
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  - Anonymous Coward, 16 Oct 2012 @ 3:50pm
    
    Re: Re: Romey called it!
    The fact is that more than 47% of americants are dependent on the states teet in one way or another (including the likes of some rich pals). A far more interesting comment that mit made at that dinner was about the u.s. debt and money printing problem. The only real buyers of u.s. government debt is the fed!!
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- abc gum, 17 Oct 2012 @ 5:06am
  
  Re: Romey called it!
  Corporations are people my friend.
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Anonymous Coward, 16 Oct 2012 @ 4:17pm

Damages for copyright infringement are either a right holder's actual damages and infringer profits atttributable to the infringement OR statutory damages. One cannot collect both, so it is likely the complaint lists both in the alternative.
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Wally (profile), 16 Oct 2012 @ 8:35pm

Apple Going Downhill
There is only one reason why this happened. Steve Jobs died. One of the major things he made sure to happen was that copyrighted photographic works never ended up in any of their products unless liscensed.

This is now Tim Cook running Apple. iOS 6 got rushed with tons of errors and no need to discuss Apple Maps. It's noted too that iOS 6 should have been delayed until perfected but Cook wanted it rushed in like the Macintosh IIci. So yeah, Apple muffed, but I would not go too far into speculation on this case as that photo may not be the same one in question.

Also, you can use HTML code to prevent your photographic works from being used as public domain.
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- Benjo (profile), 17 Oct 2012 @ 8:20am
  
  Re: Apple Going Downhill
  "Also, you can use HTML code to prevent your photographic works from being used as public domain."
  
  What does this even mean? Sounds like you are talking about HTML-based photograph DRM, which I can assure you either a) does not exists, b) does not work
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  - Wally (profile), 17 Oct 2012 @ 4:46pm
    
    Re: Re: Apple Going Downhill
    You can write in HTML code that prevents right-clicking or any contex menu on the page. Also you can write HTML code preventing screenshots, inspections, clear cache and references (cookies) once the user has left the page, and even prevent saving anything from the page. So yeah you can DRM the hell out of a page using HTML code. It's the human element that made the problem.
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    - abc gum, 17 Oct 2012 @ 5:22pm
      
      Re: Re: Re: Apple Going Downhill
      ahem .... printscreen
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      - Wally (profile), 18 Oct 2012 @ 7:13am
        
        Re: Re: Re: Re: Apple Going Downhill
        Print Screen is how screen shots are made.
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Wally (profile), 16 Oct 2012 @ 9:05pm

Mike Mansick, Apple went to Sabine Liewald's agents to get permission. You missed this part of the supposedly biased article you mentioned above.

"Apple obtained Plaintiff's photograph from Plaintiff's agent, Factory Downtown. Apple requested a high-resolution file of this photograph for "comping" (or layout) purposes only, and was fully aware at all times that it had not acquired any rights to use the photograph in advertisements without obtaining additional permission from Plaintiff or Factory Downtown."

So here's the problem. Apple asked Factory Downtown to use the photo as a layout or template to demonstrate the color gamut in Retina Display. They were given permission by Factory Downtown to use the photo but were somehow not given the legal documentation to prove they had permission to do so. Demonstrations do not need licensing so word of mouth is permissible as an agreement. Now Apple is being sued by the holder of the photograph after they were given permission to use the photo by Factory Downtown....who just happens to be liscensed to distribut the photo.

So it's really quite a legal conundrum for Sabine Liewald. The people he liscensed the photo to gave permissible use of said photograph to Apple. If anyone has ever seen Retina Didplay as much as I have, it doesn't take much convincing when you can see cracks in the skin of a person on a 480x960 4th Gen iPod Touch display. The point in Retina is that there is no bezzeling of the display.
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- The eejit (profile), 17 Oct 2012 @ 12:45am
  
  Re:
  Which is still ethically grey, if you subscribe to the belief that artists need to get paid for any use of their works.
  
  Moreover, this is also legally grey is you consider that the item was supposed to be used solely for demo purposes.
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- Anonymous Coward, 17 Oct 2012 @ 3:41am
  
  Re:
  No, he addressed that in his write-up. The thing is, permission was given for layout purposes, not for production and sales. They used the image on the final product, but changed it after they were served papers. Doesn't seem to be that big a conundrum for the rest of us.
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- abc gum, 17 Oct 2012 @ 5:09am
  
  Re:
  Apparently you need to read the articles again.
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  - Ninja (profile), 17 Oct 2012 @ 5:14am
    
    Re: Re:
    Apparently he did not read at all.
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    - Wally (profile), 17 Oct 2012 @ 5:00pm
      
      Re: Re: Re:
      I read both articles to be exact. It is in fact the same photograph. My point is simply that it was a comp for testing and demonstrating. Also as The eejit kindly reminded me it is all a grey legal mess.
      
      The Retina Display's strength is that it provides a bit more clarity of images in lower resolutions. On my iPod, I see no difference between the clarity of a BluRay movie and the iPod's native screen resolution.
      
      So given the capability of scalibity, I'm sure that through this rather (unethical) legal mess, it really was meant for demonstrations. Since the image provided to Apple was meant to demonstrate the capabilities of Retina Display, it should be ok'ed. The problem is that the agent failed to notify the creator of the photo, hence the legal mess.
      
      Basically this means all three parties are at fault.
      
      I read the article which Mike had cherry picked from as well as this article. So I have a fairly good grasp on both sides of the issue.
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      - abc gum, 17 Oct 2012 @ 5:24pm
        
        Re: Re: Re: Re:
        Did they license the work for commercial use?
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        Wally (profile), 17 Oct 2012 @ 5:42pm
        
        Re: Re: Re: Re: Re:
        It seems to me that it was handed over willy nilly by the Factory Downtown.
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- Anonymous Coward, 17 Oct 2012 @ 6:55am
  
  Re:
  "Apple asked Factory Downtown to use the photo as a layout or template to demonstrate the color gamut in Retina Display. They were given permission by Factory Downtown to use the photo but were somehow not given the legal documentation to prove they had permission to do so. Demonstrations do not need licensing so word of mouth is permissible as an agreement."
  
  Wrong, boy.
  "Comping" is using low-res files for preparing "roughs", which are multiple versions of layouts to decide which one will be used for the final version.
  ANY other use, even in a/v presentations (whether in-house or public) is another matter, and involves a separate license and fee.
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  - Anonymous Coward, 17 Oct 2012 @ 6:57am
    
    Re: Re:
    "Demonstrations do not need licensing so word of mouth is permissible as an agreement."
    
    If you've been doing business this way, Wally, you're breaking the licensing agreement with your image vendor.
    (Goes to datbase to see if any of his clients are named "Wally".)
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- cheeflo (profile), 17 Oct 2012 @ 11:37am
  
  Re:
  You are mistaken. If you've ever done business with stock photography houses, you would know that it's made abundantly clear that using an image for comping and using an image commercially are subject to different terms. Images are priced differently for different purposes based on exclusivity, audience size, editorial or commercial use, etc. If Apple requested the image for comping purposes only, then used it commercially, they DID NOT obtain legal permission to use the image, and the stock house and photographer have a legitimate grievance.
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Anonymous Coward, 17 Oct 2012 @ 8:12am

I just wish Apple would infringe on something of mine -- that's one low hanging fucking fruit, with all the cash they have right now.
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- Wally (profile), 17 Oct 2012 @ 5:45pm
  
  Re:
  Yes...because being successful is definitely evil...I don't see you scoffing at Google's success in buying up patents and buying out subsidiaries to make money.
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Courtney, 23 Oct 2012 @ 11:09pm

Wally--Have you ever used licensed photography? When I was doing in-house graphics and web layout, the photo houses I bought art from generally allowed a comp image to be used free of charge. A "comp" image is ONLY meant to be used for non-published drafts, either in-house or to present as an option to a client. The only "presentation" that is appropriate for this kind of image is where you present the drafts with the different art options to the decision makers.

Once you have chosen the art for the final piece, you agree to a different licensing agreement and then PAY FOR THE ART.

If Apple used a piece of art in the final product without going through the final licensing process, in all likelihood, the artist and photo house haven't been paid for the work. That is stealing, not legal trickery designed to punish a successful company.
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