Apple sued over alleged misuse of photo in MacBook Pro promotion - Page 3

 

Is this where someone says, "Sabine, eh? Well she can Free State my unrecognized disputed territory any time…"? 

 

I asked a friend who works in advertising about this and what he thought would be a reasonable price to pay to use a photo in a marketing campaign of the size/scope of Apple (for example, running full page ads of your photo in several major magazines).

 

I'm curious what you think Apple should have paid to use this photo, since you're "in the industry".

 

Then I'd like to see how much Apple is being sued for. The difference between these numbers will speak volumes about the "reasons" for filing the lawsuit.

 

 

Edited: Just read over the linked filing. It states that damages cannot be determined at this time. But it states they want to include things like profits, gains, and advantages Apple received.

 

In other words, she wants millions.

Edited by EricTheHalfBee - 10/13/12 at 9:55am

Damn you beat me to it.

 

Usage contracts are very specific. I find it odd that they were charged for layout purposes, but I doubt either of you have ever viewed one. If they were just putting together an fpo for approval, I wouldn't expect that to cost anything until they decided to actually use it in a real project. In terms of publicity, you guys can't view it like that. It's beyond silly. If a big client isn't paying, it sets up a bad precedence.

 

 

 

 

 

None of these things start with a lawsuit, but you don't see articles regarding negotiations between their agents or lawyers and Apple. Do not assume that all of these lawsuits were the first step. You jump to this same conclusion every time, and it is highly unlikely.

 

When Amazon gives away their free Android program of the day.

 

You shouldn't rely on iOS 6's Maps, as you'd be hard pressed to find fjords in Switzerland.

I expected there would be hostility toward the photographer before I even started reading commons.

Sure enough...

Apparently none of you people bashing the photographer are photographers, trying to make a living at the craft. If a comp was used for marketing, Apple owes. That's how the business works. Suggesting the photographer is getting "free promotion" is ridiculous.

I'm not "in the industry" of advertising (I only have experience in exhibits and product design.) But in my experience, the license depends mostly on what the copyright owner can command (it is a negotiation, but the seller gets to set the price, and the buyer gets to decide if they want the deal.)

She's clearly a well established photographer [has had plenty] of high level clients and some very marketable work:

http://www.sabineliewald.com

 

If I had to take a wild ass guess, of a likely license for such an image:

Knowing what was paid on small projects I have been involved with in the past, and assuming  a few things --

international use,

a mixture of medium and full res licenses (most likely for such a deal they would negotiate a single package deal,)

Use on billboards, in store, print and electronic (I haven't seen it on TV,)

A probable 6 month to one year term of use (or as negotiated,)

 

I would guess a *minimum* of $25,000, but I frankly thing she would ask for at least $100,000.

 

I'd be interested to know what your friend thinks, if he has experience with similar projects.

 

I do know that Leslie Feist got (low to mid) six figures for the use of one of her songs for a single Apple commercial. Additionally, they arranged (not part of the negotiated deal) for her to get a US passport too! Very handy for a musician in the post 911 world. That alone probably cost $20,000 in fees and lawyers and she probably would have had a hard time doing it for any price without Apple's help (she mentioned the passport on Letterman one night.)

 

[Also RE "she wants millions,"

She does get to set the price. Apple gets to refuse it.

Since Apple didn't negotiate, they may have to pay several times what would have a reasonable price from the start.

I doubt she'll get millions, but I wouldn't be surprised by 1 or 2 million.]

 

Edited by DESuserIGN - 10/13/12 at 1:19pm

We don't know enough details to even guess.

If Apple used a stock photo from a stock photo web site, there would have been a license amount listed. If Apple failed to pay that amount, that's probably all that Sabine could collect (unless the contract specifies something different). There's always a chance for minor punitive damages and Apple being forced to pay legal expenses, but if the stock photo site says that unlimited licensing is $25 K, that's all she's going to get (other than legal expenses and maybe minor punitive damages, as mentioned).

OTOH, if there was no contractual relationship and Apple simply took the photo without permission, the damages could be higher. However, in the US, it is extremely unlikely that they'd pay a share of profits or gains. The photographer would have to prove that Apple sold those MBPs solely because of using his copyrighted work - which doesn't sound even remotely plausible.

The facts will come out. At this point, it's all speculation. It wouldn't surprise me, however, if Apple did have a license and Sabine is trying to get more money. Or perhaps it was a minor oversight on the part of the ad agency Apple used and Apple will pay the appropriate licensing fee, but none of this 'share of profits' garbage.

Oh, and btw, Apple's contract with the ad agency almost certainly says that the ad agency is responsible for licensing any photos they use (the contracts I've signed with ad agencies usually included a clause like that), so Apple's not going to lose anything, anyway. The ad agency is the one who would pay any damages. In all likelihood, Apple wasn't involved in the licensing at all and probably had no way of knowing that it wasn't licensed. In fact, that's an even more likely scenario than the one above. The ad agency paid for a license to use the photo and then put it in Apple's ad. Sabine looks at the list of companies paying for the photo and Apple wasn't there - so she assumes that Apple stole it - without even considering the possibility that it was licensed via the ad agency.

I didn't see anywhere that Apple used an outside agency (Chiat/TBWA?) to develop the promotional materials. Are you assuming so or did I miss something? As far it being a stock-photo from a website, I don't think that's the case in this instance. It looks as tho they were negotiating directly with her agent going by the complaint.

 

BTW, the stock photo instance I remember linking several months ago wasn't about this image. Instead it was another Apple promotion that used an icon for the new Retina feature at the iPad2 introduction. That one was a stock image from iStock:

http://www.istockphoto.com/stock-photo-5733150-multicolored-eye-macro.php?st=7cb7511

Edited by Gatorguy - 10/13/12 at 4:40pm

Are you serious?
Re-staging an image is copyright infringement and, since Apple is said to have purchased the original, it might even prove wilful infringement. Big damages.
Search - there are many big payouts for doing this.

To the nit-pickers, Berne...whatever, the world of publishing is rife with spelling mistakes, transcription errors, audio translation errors and plain 'ole software f/ups. You ought to get out more.
Grown-ups just frown and get on with it.

I develop rights management systems and the reason why companies use it is exactly to avoid situations like this one.

At one company I consulted at (after the fact) they had the rights to publish a children's novel. Someone got the idea to create a coloring book. They didn't have the rights to do that. I don't know whether they settled or whether there was a lawsuit, but it cost them $ millions.

If you use someone else's asset without a license, you get sued. If you make a movie and there's a poster in the background, you have to get rights to use that poster, even if the use is totally passive and even if its appearance might trigger sales. I happen to personally think that such passive uses should be permissible without a license, but that's not the law.

As for this photographer, she has to have had the photograph specifically registered with the copyright office. She can do that after the violation takes place, but there is a limited time (it might be 90 days, but I've forgotten). If she's suing over a copyright violation, she can only sue in federal court.

Those are the facts. Anything else either in favor of Apple or in favor of the photographer is simply whining. This will probably get settled. Apple should know better - there's no reason for a company the size of Apple to be stealing images, although I wonder whether this was Apple's doing or their advertising agency's doing.

I'm assuming that they used an outside agency - since Apple ALWAYS uses an outside agency.



Look at the link you provided. Click on 'extended'. It costs $200 for unlimited print usage. We're not talking about very much money here. I suspect that Ms. Sabine is going to be horribly disappointed.

Apple is a multi billion dollar company. I doubt they hire lawyers that 'miss' the fine print.

My guess is that he is the one that missed it

That is one scenario. Another could be that Apple knows that a single person is more likely to miss fine print or fight a costly legal battle against a multii-billion company. I don't think it's unfathomable to think that corporations will take these measures.

They do have an understanding, but its such a generic design it seems insane anyone got a trademark for it. And I would actually wonder if they have a world wide mark. They might not but Apple figured why bother with the fuss of a law suit. Especially if they are asking for much

And you have proof. Versus them licensing it properly from a stock house etc

Does anyone honestly think that people weren't going to buy the apple product regardless of this particular image?

You know what else is negligent. Declaring someone guilty with all the facts

 

Gosh dang due process!

😉

That's why they use licensing houses. And Apple likely paid per the use they wanted.

This might be more a case of the license house being contacted by an agency on behalf of Apple in part to avoid 'Apple can afford it' way higher prices and they didn't do their research to know who was behind, or very likely behind, the request. So everyone got paid but not as much as she'd like

Since Apple had the high res image when they were not supposed to be supplied the high res image then that would imply that Apple licensed it for comping but was somehow accidentally supplied a high res image. The purchasing department is going to purchase what was asked for, namely a comping image.

 

Next the art department used the image supplied for comping, the comp artist or art director would not really be paying attention to whether the stock photo was incorrectly supplied as high res, if anything they would assume that  there was a miscommunication and they were supplied a high res image even though they did not ask for it.

 

They probably used it in a comp, the ad was approved and they ran it. They may have even rejected it and approved a different comp image but decided to use the eye anyway because since they thought it's already high res and paid for they may as well. No one is at fault here, there is no deliberate attempt to swindle anyone. To make this into a lawsuit is none other than a perfect example of a 'frivolous and vexatious' lawsuit.

Heh. Heh heh. Heh heh heh.
While I do find the suit somehow ridiculous, I absolutely love how the very same people who go all court-happy on Samsung suddenly find that, in this case, plain and stupid use of the law is bot appropriate.... because Apple would lose.

@mrstep: a Corporation is not allowed to "just miss the fine print".

Now, I've never really udertood why the ugly pictures. Maybe this will push Apple to have its own inhouse artists

 

 

who is sabine?

Extremely unlikely. The unlimited use for most of the stock images on the site someone provided is a few hundred dollars at most. Apple isn't going to intentionally rip someone off for a few hundred dollars-especially when creative professionals still constitutes a major market for Apple.

It was almost certainly an oversight on someone's part - and will be rectified.

I don't think anyone is suggesting that it was OK for Apple to use the photo without permission. For example, I stated explicitly that if Apple used the image without permission, they will lose in court and should be made to pay.

There's no double standard here - except in the mind of the iHaters.

Apple needs to pay up, and then counter sue for any money that this guy has made as a result of the publicity, as his photography sucks.
 

JR...

You're not understanding what you're reading. The link you're depending on in your responses is for an iStock photo used in a previous Apple campaign for the Retina iPad2. The one used in this instance for the Mac appears to be direct from the photographers agent and not any stock photo website. The prices you're assuming are unlikely to apply. Read the actual complaint linked in the AI story and it will make more sense.

 

...and I completely agree with your last sentence. I very seriously doubt they were intentionally trying to avoid paying the phototgrapher for her IP.

Edited by Gatorguy - 10/14/12 at 6:35am

 

 

What's the used of avoiding the paying of the photographer? They need the license

What an odd question. How do you suppose Apple gets a license, by donation?

For the umpteenth time, the photographers name is Sabine, which implies her gender is female.  Her photography does not suck, it is of the highest quality both artistically and technically.  Her images are very inventive.

 

Have a look at her work:  http://www.google.ie/search?num=10&hl=en&site=imghp&tbm=isch&source=hp&biw=1046&bih=540&q=Sabine+Liewald&oq=Sabine+Liewald&gs_l=img.3...1449.1449.0.2263.1.1.0.0.0.0.55.55.1.1.0...0.0...1ac.1.y8Rw4O7Olug

 

Her work has been used without appropriate compensation, she is entitled to seek redress for that.  Apple will pay up.

According to the claim, not only did Apple acquire the image for comping purposes, they subsequently advised that they didn't intend to use the image in advertising.

Seems to me that Apple has to cop it sweet...

 

You've heard of "A Boy Named Sue?" ;-)

And yes, I agree here too. I'm sure Apple did this unintentionally, even if it is a significant error. And I'm sure they will make nice.

 

Now that she has their attention, they might even make nice enough (seeing that she has lots of other possibly appropriate images) to make a juicy deal to license a few more images to settle things amicably (if she's willing.) When Apple is in they wrong they have been magnanimous with reasonable people.

Edited by DESuserIGN - 10/15/12 at 9:09am

This is because, if they took the proper channels, they would only get a few dollars for usage of a stock photo. This way, they, and their lawyers, get more money than the going rate.

By stealing perhaps!

Really sweet... that's how Apple money works