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Apple settles 'Retina' promo image suit with Swiss artist

post #1 of 39
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A filing with the New York District Court last week reveals that Apple settled a case out of court regarding the alleged misuse of the "Retina" eyeball used to promote the company's MacBook Pro with Retina display.

Eye Closeup
Photographer Sabine Liewald's "Eye Closeup" as seen on Apple's 15-inch MacBook Pro with Retina display.


Apple last Wednesday settled the suit levied by Swiss photographer Sabine Liewald ahead of a court scheduled meeting slated for today, reports Cnet.

In the original complaint from October 2012, Liewald claimed that her image of an eyeball, titled "Eye Closeup," was illegally used during an Apple keynote in June. The photograph was used to show off the capabilities of the company's first high-resolution display laptop, the 15-inch MacBook Pro with Retina display.

While Apple acquired rights to use the photograph, the terms did not extend to public displays and was meant for mock-ups only. The settlement terms remain undisclosed but the Liewald was seeking damages plus lost profits from Apple's use of the image.

Apple 'Eyeball' Settlement by Mikey Campbell

post #2 of 39
Payday! Who says artists starve?

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post #3 of 39
Originally Posted by Suddenly Newton View Post
Payday! Who says artists starve?

 

 

Seems pretty sweet to me.

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post #4 of 39
I'm sure the artist lost a ton of profits because of this. After all, once everyone had seen it in a semi-private Apple event, why would they ever buy it from her to display again? Apple should pay for the performance right and whatever penalty/interest it owes for misusing it, but lost profits are ridiculous here.
post #5 of 39
Claiming lost profits seems reasonable to me. The artist has effectively lost the opportunity to market or license this image to another company as it is now recognized as an Apple image. Not sure if a mistake on Apple's part or just a conscious decision to move quickly with the presentation material and settle up in court later...
post #6 of 39
Course since we can't see the terms we don't know if the artist got any money, if the terms really didn't allow it etc.

It is very possible at the terms could have been such that, as a marketing event, the use was covered. And that Apple really didn't owe her anything. But perhaps gave her a little extra anyway. To avoid her being embarrassed by the courts siding with Apple etc.

We really can't say either way
post #7 of 39
seriously, are you guys saying Apple shouldn't pay for the right to use it?
post #8 of 39
Originally Posted by 65C816 View Post
seriously, are you guys saying Apple shouldn't pay for the right to use it?

 

I don't see any reason for them to pay for it if it was used it in a way that allowed free use. However, if their chosen use of the image required payment to the creator under copyright law, of course they should pay for it.

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post #9 of 39

What really got me about this was that Apple, of all tech companies, should know better.

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post #10 of 39
Quote:
Originally Posted by John.B View Post

What really got me about this was that Apple, of all tech companies, should know better.

They should, but Apple can make mistakes, too. If that happened with any other company it would not have ever made the news.

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post #11 of 39
This artist lost money? Really!
post #12 of 39
Quote:
Originally Posted by Tallest Skil View Post

 


Seems pretty sweet to me.
Yeah, but it's still pretty nutty!

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post #13 of 39
Uh oh, I hear sales plummeting
post #14 of 39
Quote:
Originally Posted by wubbus View Post

Claiming lost profits seems reasonable to me. The artist has effectively lost the opportunity to market or license this image to another company as it is now recognized as an Apple image. Not sure if a mistake on Apple's part or just a conscious decision to move quickly with the presentation material and settle up in court later...

Perhaps you didn't realized the publicity that will bring in more money to the photographer's coffer by many more clients using his services.

 

Loss of profits? firstly he hasn't made the profits yet so how can he claimed his loss.

post #15 of 39
Considering how restrictive Apple allows its own images being used, hard to imagine how someone in their legal team didn't get the rights to the photo correct. Sounds sloppy.
post #16 of 39
Quote:
Originally Posted by charlituna View Post

Course since we can't see the terms we don't know if the artist got any money, if the terms really didn't allow it etc.

It is very possible at the terms could have been such that, as a marketing event, the use was covered. And that Apple really didn't owe her anything. But perhaps gave her a little extra anyway. To avoid her being embarrassed by the courts siding with Apple etc.

We really can't say either way

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post #17 of 39
Quote:
Originally Posted by maccherry View Post

This artist lost money? Really!

Yeah, of course. If any company says they'd like to use your photo for internal documents then you'd get either a small fee for the use or let them use it for free (unlikely but it gives you bragging rights). If a company like Apple says they'd like to use your image to highlight a selling point on a product that is going to make the company millions in profit you'd normally ask for a percentage per item sold or a payout depending on expected sales.

 

So yes, the artist (if you can call photographers "artists") has probably lost a substantial amount.

post #18 of 39
Quote:
Originally Posted by John.B View Post

What really got me about this was that Apple, of all tech companies, should know better.

 

Since none of us knows any of the relevant details, it's a bit difficult to criticize either side. However, I very much doubt Apple intentionally and knowingly used this image in an unauthorized manner with an intention to not pay for it. The issue was settled fairly quickly, so I doubt, as well, that they were resistant to properly compensating the artist. Companies and people make mistakes, it's how they deal with them that's important.

post #19 of 39
Quote:
Originally Posted by 65C816 View Post

seriously, are you guys saying Apple shouldn't pay for the right to use it?


I don't see anyone saying that.

Apple used it in a way that apparently violates the license terms. They therefore need to pay.

We don't know the details as to how it happened, but it doesn't really matter. Regardless of whether it was intentional or an accident or due to a mistake on the part of their ad people, it's still Apple's responsibility to pay.
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post #20 of 39
Quote:
Originally Posted by anonymouse View Post

 

Since none of us knows any of the relevant details, it's a bit difficult to criticize either side.


May I quote you on that the next time a legal battle story pops up on AI? :)

post #21 of 39
Quote:
Originally Posted by AdamC View Post

Perhaps you didn't realized the publicity that will bring in more money to the photographer's coffer by many more clients using his services.

 

Loss of profits? firstly he hasn't made the profits yet so how can he claimed his loss.

The publicity argument is entirely plausible, as I would guess that this situation has "bought" a lot more name recognition for the photographer.  However, Apple can hardly claim that as a defense :) ... "We breached our contract/license/agreement, but hey we got your name out there so don't worry about it!"

 

To your second line (loss of profits)...I think the point the settlement is going after is that the photographer could have gone and licensed this photo for public displays (sounds like a very sound argument as Apple indeed did use it for public displays).  However, as the work has now been used in that capacity (without compensation), the photographer has lost those potential profits from licensing or selling the image.

post #22 of 39
How come Apple sues every Tom, Dick and Harry over its designs but goes about nicking the designs of others. Swiss watch hands anybody...?

Poor Show. Becoming a serial offender

 

 

 

 

 

 

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post #23 of 39
Quote:
Originally Posted by Tallest Skil View Post

I don't see any reason for them to pay for it if it was used it in a way that allowed free use. However, if their chosen use of the image required payment to the creator under copyright law, of course they should pay for it.

I can't imagine anyone arguing that the use of an image in a public presentation to introduce their new products would fall under fair use.

Quote:
Originally Posted by morgajx View Post

How come Apple sues every Tom, Dick and Harry over its designs but goes about nicking the designs of others. Swiss watch hands anybody...?

Poor Show. Becoming a serial offender

Apple spends hundreds of millions or billions of dollars in advertising every year. Considering that they hire agencies to do much of the work, it's not clear that Apple was even at fault (other than not catching every error, but that would be difficult). With companies as large as Apple, unintentional infringement occurs. Apple then makes it right (for example, I think the amount they paid for the Swiss railway clock was absurdly high). That's all you can reasonably ask.


However, there's a trend here. First the Swiss railway clock. Now a Swiss artist's photograph. Maybe Apple should just buy Switzerland?
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post #24 of 39
As a photographer, I gather the pertinent information about how a potential client will use an images and quote a fee. If a client grossly underestimates its use, there must be action taken. The Library of Congress is the governing body for our countries Intellectual Property laws and they have a maximum penalty of $150K per infringing occurrence. How many times do you think that Apple used the image in an ad? In Commercial Photography, we will often receive 3-5% of the Media Buy budget as our fee for licensing images. How much do you think Apple spent to place those ads using that image? This should give you an idea of the images value to Apple.
post #25 of 39
Maybe they just handed the artist a few laptops and everyone was happy.
post #26 of 39
Originally Posted by jragosta View Post
I can't imagine anyone arguing that the use of an image in a public presentation to introduce their new products would fall under fair use.

 

Do you object to the purpose or the venue?

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post #27 of 39
Quote:
Originally Posted by RichL View Post


May I quote you on that the next time a legal battle story pops up on AI? :)

 

If the circumstances are identical, yes, but you'll need to show that they are, otherwise you'll just be quoting out of context like so many other fools around here.

post #28 of 39
Quote:
Originally Posted by Tallest Skil View Post

 

I don't see any reason for them to pay for it if it was used it in a way that allowed free use.

 

I have no idea what the above means.

post #29 of 39
Quote:
Originally Posted by Tallest Skil View Post

 

Do you object to the purpose or the venue?

 

Clearly, the purely commercial nature of the use disqualifies it from fair use.

 

US Code › Title 17 › Chapter 1 › § 107

 

Quote:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
 
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) 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.
 
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
post #30 of 39
Originally Posted by PowerMach View Post
I have no idea what the above means.

 

How? "Why should I pay for it if I used it in a 'fair use' way?"


Originally Posted by anonymouse View Post
Clearly, the purely commercial nature of the use disqualifies it from fair use.

 

US Code › Title 17 › Chapter 1 › § 107

 

That makes sense. And it wasn't copylefted or creative commons'd? Then yeah, if Apple didn't pay, they should.

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post #31 of 39

"if it was used it in a way that allowed free use."

 

They used it for commercial purposes. Fair use isn't even appropriate for discussion. The only discussion would be what the licensing terms allowed or did not allow.
 

post #32 of 39
A large FInnish telecoms company stole an image of a friend of mine and claimed that they had no idea that they could not simply take the image, remove the watermark, photoshop it a bit and try to change the EXIF data. Who knew??? End of the story, they lost the suit and my friend is quite about %u20AC50 thousand richer... The judged ruled that they knew what they were doing when they removed the watermark, and tried to change the EXIF data.

The problem that photographers (real shooters) have is that Insta-crap actually let's people think that they are photographers simply because they can apply a filter and post an image... God I hate Insta-shit...
post #33 of 39
Originally Posted by PowerMach View Post
The only discussion would be what the licensing terms allowed or did not allow.

 

Right, and some copyleft/creative commons licensing allows that. Hence it being called into question.

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post #34 of 39
Quote:
Originally Posted by Tallest Skil View Post

 

Right, and some copyleft/creative commons licensing allows that. Hence it being called into question.

 

Yes. And...? Her images are copyrighted in the United States - Copyright Registration # VA0001827874. Commercial fashion photographers are generally not in the business of freely releasing their works so that people can build upon them or freely distribute them.

 

You can license some of her works here: http://il.factory311.com/

 

The advertising/creative agency and Apple made a mistake. She sued. They settled.

post #35 of 39
Originally Posted by PowerMach View Post
Yes. And...? Her images are copyrighted in the United States - Copyright Registration # VA0001827874. Commercial fashion photographers are generally not in the business of freely releasing their works so that people can build upon them or freely distribute them.

 

All right, but she could have. There are shades of copyright.


The advertising/creative agency and Apple made a mistake. She sued. They settled.

 

And that's all well and good. Justice—actual justice—served.

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post #36 of 39
"In the original complaint from October 2011"...
Sure, the Retina Macbook Pro was released in June 2012. How is that possible?
post #37 of 39
Originally Posted by yvvv View Post
"In the original complaint from October 2011"...
Sure, the Retina Macbook Pro was released in June 2012. How is that possible?

 

Just an editing error. Fixed now; thanks!

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post #38 of 39
Quote:
Originally Posted by jragosta View Post


 Maybe Apple should just buy Switzerland?

Apple have vast amounts of money, I grant you this. But to buy Switzerland? Not nearly enough for that kind of endeavour :P

post #39 of 39
Quote:
Originally Posted by Totems View Post

Apple have vast amounts of money, I grant you this. But to buy Switzerland? Not nearly enough for that kind of endeavour :P

… but is too much chocolate a bad thing?

 

Cheers

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