Apple sued over alleged misuse of photo in MacBook Pro promotion - Page 2

I realize that the concept of intellectual property is difficult for you to understand, but let me try (again) to educate you.

Ideas are not protectable. You can not patent or trademark or copyright an idea. Therefore, when Jobs (a la Picasso) said that Apple steals ideas, there is no intellectual property violation. They are taking an idea and then implementing it in their own style - as great artists do, according to Picasso.

OTOH, specific implementations of ideas can be copyrighted or patented or trademarked. If you have a specific implementation which carries IP protection, someone is not allowed to simply copy it. That is what Samsung was found guilty of doing.

So, no one can copyright the idea of a picture of an eye with too much makeup. But that particular picture of an eye with too much makeup is copyrighted.

Now, if Apple did use it without permission, then they're in the wrong and will undoubtedly have to pay up. That in no way justifies what Samsung and Google have done.

You didn't understand the: "probably ......yada, yada, yada..." So by your reasoning, it is okay for Apple to STEAL the photo because the photographer should be honored and there is a chance that they will become famous. Makes no sense. You obviously have very little understanding regarding the licensing of images...

Why crush the FEMALE. Sabine is a female name so start by getting a clue. Second, she appears to be the one wronged here. Not Apple. Seems like you need 2 clues...

Spoken like a true IP abuser.

 

Anyone who works in advertising or design knows about photo rights. You have to pay for what you use.

Now did the photo enhance the profits on the MBP? Hard to say. But it is a striking photo and I remember being struck by it when I saw it used in Apple ads. I also recognized it immediately when I saw it in this article. Apple will pay (and pay extra) as they should.

 

No, it's not fine for them to steal the photo. But a lawsuit is NOT the first step. You go to Apple, you say, "Hey, you're using my image. That's awesome, but you didn't pay for it. Could you please pay me an appropriate fee for it? Thanks."

They don't comply, you sue. But you do that first.

Yeah, see the above.

Lots of places give high res comps.

Many professionals trust other professionals to be professional. Apple make a mistake. It would be insane to use a photo like that without licensing it. Hell, I had to do it for images used in museum exhibits for U.S. National Parks. It's normal everyday practice to do so, and negligence not to.

OK so maybe you have a direct line to Apple. I think the photographer would've probably gotten hung up on.

 

Then she sues for misuse of her photograph and for professional disrespect. 

 

Do you really think it's so hard to call Apple? Do you REALLY think that Apple would "hang up" on someone calling about an intellectual property lawsuit? Come on.

Really? The world's most well known and powerful tech company is going to steal an image and "try to get away with it?" You mean by showing it to millions of people hoping nobody will notice?

Really? That's your answer? That has to be the lamest argument I've ever seen. Even taking your ridiculous assumption, you would still have the lawyer contact Apple before filing.

If you were a graphic designer or design director you would understand.

Images for for layout only are used in the ideation process. These are usually low res, watermarked, and free to use for comps and non commercial single uses (in using the image you accept the very simple terms of the license, which is often included in the image metadata.)

Once you narrow down the concepts, you want to see them full res. You would never approve an image without actually seeing it full res. At that point you get full-res comps (high res files for layout only.) These are usually pretty cheap $5 - $25, or less (some places will let you use them for free) and yes there is a very specific license for these too. Typically no commercial use -- for layout and demonstration only.

Once you've seen the high res images and you decide on the image to use, you get a license for the planned use. Typically the fee is set according to how the image is to be used, what res is needed, the number of imprints (copies, electronic or print,) and the period of license. The cost will vary greatly depending on the owner of the image. Images I licensed (one imprint, in one museum, for five years) might cost anywhere from $300 to $3000. For an international commercial campaign like this the cost of the license could be very substantial. Rates have gone down in the last decade as the market is awash in cheap, online stock images, but most of them are crap. Good quality images like this one are still quite expensive. Contrary to what some people here have said, it is a high quality image. After all Apple thought it was good enough to include in an international ad campaign.

Yea since we all have lawyers on retainer, it was probably a lawyer's idea to sue in the first place.

What makes you think she didn't try to do exactly that? A company as big as Apple probably barely notices a run of the mill cease and desist order. The owner probably had to have their attorney to the talking.

What I really object to is your implication that Apple is doing her a favor by stealing her image. It sounds extraordinarily hypocritical of you.

 

That is pathetic.

Just give it up and admit your first post was totally out of line.

 

 

 

I fail to see how doing things properly and respectfully is "pathetic". 

 

First you say she was wrong to sue and that she should feel "honored" by Apple stealing her image.

Now you think she sued "disrespectfully."

 

I find it pathetic that: 1.) you're being such an apologist and 2.) that you don't realize how wacky your first post was (but of course you have a good deal of company there.)

Apple clearly had a reason for using this image and felt it would capture the buyers attention to the new retina display.  This is the second time Apple has used others works without permission is such a short window.  Apple sues all the time and sees dollar signs so the little guy/gal cannot do that, they have no rights to protect their own intellectual property and copyrighted/trademarked images or content.  Take without permission and you get sued, Apple knows that game all too well.

 

I also do not believe for one second that someone within Apple conceived of the spot on duplicate clock that SBB has trademarked on their own.  They saw it, took it and expected SBB to be flattered and that would be that.  Just as everyone here says Apple has a right to protect their IP, so do others.

Thanks for the reply, you have answered all my questions.

Of course it's the Berne Convention, not Byrne.  Nothing to do with Talking Heads.  Berne is in Switzerland...maybe some kind of Swiss conspiracy...

 

Would it have been so hard for Apple to pay for the usage?  Did they not have enough cash lying around?

Back when the ad first appeared I made a post linking the source of the image. I believe I even commented that I was surprised at Apple using a stock photo for this, and doubly so for not even bothering to take an extended license for a set period of exclusivity. At the time I linked the image, several days after it was included at the introduction, it was still available to download and use by anyone else willing to pay a very small license fee.

 

EDIT: She claims in the lawsuit filing that:

"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.

Apple subsequently informed Factory Downtown that it did not intend to uses (sic) the "Eye Closeup" photograph in the advertising campaign for Apple's MacBook Pro computers. Despite representing that it did not intend to use the photo and knowing that it had not obtained a license, Apple proceeded to copy, publish, and exploit Plaintiff's photograph, including in its MacBook Pro advertising campaign, keynote addresses and related advertising materials without permission or compensation."

Edited by Gatorguy - 10/12/12 at 7:43pm

 

Wrong to sue… first. If she didn't, I apologize for the implication; she did what I thought anyone should do in the first place anyway.

 

I don't recall any 'a-oogah' horns going off, no.

If I had created the image I would be flattered as hell that Apple used it.

 

Just because independent photographers and designers are freelance doesn't mean they work for free!

 

http://edbuziak.tumblr.com/post/33444976973/hits-the-nail-on-the-head-kateordie-ive-been

I'm sure he was flattered but that doesn't mean he doesn't deserve proper compensation for his work.

Honored, flattered, nada.

 

Means nothing, doesn't buy you a cup of coffee.

 

They knew enough to license the image for "comp uses only" and therefore knew what that means.

 

It was most likely sloppy paperwork by someone at the agency involved.

 

Most professional art buyers know all about rights & usage and Apple does, absolutely.

 

Apple is in the business of licesing intellectual property, think you own that Itunes download or copy of OSX? Think again, you just paid a licensing fee.

 

Also, people normally do not watermark images supplied for comp uses, that's amateur hour.

 

The images where scourced through an agency and they knew full well what usage rights where agreed to.

It's far harder than you might think to reach a responsible party at a huge corporation by an individual .

 

Pick up the phone, who do you ask for ?

 

We in the professional photo community  are constantly battling unauthorized and inappropriate uses of our work. Suing is a last resort , no-one wins except the lawyers .

 

I hope she wins though because artists rights are just as important as big corporations which are not "people" despite what Mitt Romney says.

 

Only when the big players are called on their infringements will anybody actually notice.

 

 

 

Thank you for the explanation.  So "for layout" can mean "because we might very well license it for the real deal, but we have to show some mockups to the decision makers."  Makes sense.  Thanks.

oh he thinks his eye image is partially the reason why Retina MacBooks succeed?!?! geesh.... like people would say, "Wow, I gotta have this Macbook because of that eye!" 

Byrne Convention? I'm sure Mr. Byrne would be flattered/amused.
Let's make it the Bern Convention.

I can see both sides of this. Apple does a lot of marketing and buys a lot of stock photography. It seems like less than one percent of the images have copyright problems, they might just need to improve their workflow. From the artist's side, there's no way to get paid after the fact unless it's done through court. Artists are constantly dealing with their images being used with the incorrect license. The fact that it was Apple or some small time company doesn't really matter, this is the path they pursue. I'd be surprised if that court filing wasn't a form letter that had Apple's name and the piece of art as merge fields!

It's just business, folks...

I was thinking along similar lines, Apple had to have had the high resolution version somehow ... that or one hell of a good up-rezzing algorithm!

 

Oh, get real. 'I should be honored that Apple infringed my copyright'? Most people in the wider non-Apple-worshipping world just don't think like that. 

 

Firstly, he's probably feeling aggrieved that Apple thinks it can just run over the little guy. Secondly, there's probably quite a lot of money in this, and most folk would take that opportunity!

 

If it were Samsung who had done this, I bet you'd be calling for them to be sued into oblivion.

 

No. Read my posts for what I believe should be done.

Your logic fails. How did the photographer sue? Oh, yeah. She had to serve Apple with court documents. That means that she had an address for Apple. The address she used to serve Apple with the lawsuit papers could also have been used to notify them of violation.

I obviously don't know what her particular lawyer would have said, but that's a huge misperception. Most lawyers try to reach an agreement with the other party before suing. First, it's a guaranteed win for them with minimal effort. In a lawsuit (particularly if it's on contingency), they could invest a lot of time and money and come away with nothing. I've dealt with attorneys in business for decades and never once had an attorney suggest suing before trying to settle it.

Now, we don't know that they never approached Apple. It's possible that they DID make a reasonable effort to settle. I doubt it, though. This is a pretty clear cut violation on Apple's part if they don't have a license, so it's hard to imagine that Apple would refuse to pay the standard licensing fee. It is, of course, possible that they tried to settle with Apple but asked for 100 times the standard fees for whatever distribution method they are using.

It's just business and it's insignificant. If Apple really did have a license, the case will get thrown out (and Sabine might end up paying Apple's legal expenses if that is allowed in the jurisdiction where it was filed).

If Apple didn't have a license and used it, they will have to pay the license. Since the image appears to have come from a stock photo site, the license fee is probably pretty well fixed. So Apple will pay a few bucks and the whole thing will go away-other than the conspiracy nuts who will be screaming about eyeballimagegate.

What this will do is force Apple to give up on stock photo's and just do their own which means that all of us who literally pray for a company like Apple to buy their art and help finance our efforts to create.

I would love to put "Supplier to Apple" on my signature, does anyone realize how much that is worth !!!

What a leper this guy is, gives us all a bad name

 

Now for something as silly as this law suit:

 

A-well-a, Berne, Berne, Berne, the Berne is the word. A-well-a, don't you know about the Berne?

 

Man, that's good coffee.

??? 

How can this be taken seriously.

The filing doesn't even know the name of the worldwide copyright treaty. If my lawyer can't get the name correct, I'd be seriously concerned that I can prevail.

Particularly funny is the plaintiff is swiss, she'd know that the name of the town in which the Convention for the Protection of Literary and Artistic Works is "Berne" not "Byrne."

I obviously don't know the particulars of the facts, but I'd find it incredible that Apple didn't have rights to use the photo. Another possibility, Apple didn't like the photo provided and re-staged a different, but similar one, and used that in its promotions.
Edited by cfm2003 - 10/13/12 at 9:08am

I've had  a couple of clients tell me that they don't need a license for stock art/stock photos once we or they have altered them. I even had at least one experienced agency designer tell me the same thing, and that it wasn't an uncommon practice. According to her, minor changes (blurring/removing the eyelashes for instance) were good enough to avoid licensing, something we as a company disagree with

 

Worse, I can't count the number of times I've received final print orders from designers with obvious "comp" images embedded. Some even take the time to try and remove any watermarks as best they can to avoid paying the original creator for a license.  Producing large-format images for clients makes a lot of otherwise unseen details, flaws, and shortcuts apparent.

 

EDIT: BTW this isn't making the claim that Apple did any of this. 

Sabine... she's a girl

Just to straighten out something... This "guy" is called Sabine, she's a girl... ;-)