Apple sued for duping Apple TV image, hosting iTunes track

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  • Reply 61 of 90
    murphywebmurphyweb Posts: 295member
    Cabbage Soup.
  • Reply 62 of 90
    murphywebmurphyweb Posts: 295member
    Potato.
  • Reply 63 of 90
    aisiaisi Posts: 134member
    Quote:
    Originally Posted by Mr. H View Post


    Exactly. For copyright infringement, Apple would have to have used the original image. They didn't. They created their own.



    No, there may be infringement if the image is substantially similar to the original.



    Tannenbaum Helpern Syracuse & Hirschtritt successfully protected Psihoyos' copyright [amazingly, this was for the very same photograph!] in an infringement action against Microsoft and the ad agency McCann Erickson. Psihoyos v. Microsoft, 00 CV 5744 (RMB) (S.D.N.Y.).



    Andrew Berger “Hey, That Looks Like Mine” The Law of Substantial Similarity:



    Quote:

    Mr. Psihoyos created a photo called 500 TVs. The photograph won many awards and was published more than a hundred times in magazines and newspapers around the world. Thereafter, McCann Erickson, the ad agency, created an ad for Microsoft promoting the launch of one of its software programs.The ad included a photo containing many elements similar to those in Mr. Psihoyos’ photograph.







    In Mr. Psihoyos’ suit against McCann and Microsoft, we argued that McCann had access to Mr. Psihoyos’ photograph […] We also argued that there were a number of elements in the Psihoyos photo that McCann had copied and that the idea and expression underlying each was the same.



    Although the Rogers and Psihoyos cases were resolved on a confidential basis, they highlight the questions you should ask yourself next time you see a work that looks like it might be yours. The questions are:



    1. Is there access?

    2. Is there copying?

    3. Is there substantial similarity?



    In sum, if there is access, copying and substantial similarity, there may well be infringement.



  • Reply 64 of 90
    mr. hmr. h Posts: 4,804member
    Uh-oh! The return of random-time posts! Come on AI, WTF? Fix your servers.



    Quote:
    Originally Posted by murphyweb View Post


    Though my comments still stand, and posts such as this are ridiculous to the extreme...



    I don't think that they are ridiculous in the extreme. I don't think that Swift is arguing that copyright should be done away with, he is just drawing the lines about what "different enough", "substantial amount", "minor changes", and "little substance" actually mean.



    The aim of copyright is to protect the creators of original work, whilst allowing others to be inspired by said work and to then go on and create their own original work. This allows the state of the art to keep moving forward. I think that copyright law is perfectly balanced in this respect, unlike patents.



    The thing is that some people here (including, seemingly, you) are confusing copyright with other things such as Patents and Registered Designs (design patents in the U.S.). The photograph in question is not patented, and is not a registered design. Therefore, in order to determine if Apple's image has infringed, one must make interpretations of the phrases "different enough", "substantial amount", "minor changes", and "little substance" (see Mazzy's earlier post).



    Is Apple's image "different enough" from the original photograph that it hasn't violated copyright? Honestly, I'm not sure. I think it's pretty close.
  • Reply 65 of 90
    swiftswift Posts: 436member
    Quote:
    Originally Posted by AISI View Post


    No, there may be infringement if the image is substantially similar to the original.



    Tannenbaum Helpern Syracuse & Hirschtritt successfully protected Psihoyos' copyright [amazingly, this was for the very same photograph!] in an infringement action against Microsoft and the ad agency McCann Erickson. Psihoyos v. Microsoft, 00 CV 5744 (RMB) (S.D.N.Y.).



    Andrew Berger ?Hey, That Looks Like Mine? The Law of Substantial Similarity:



    Oh, my God. Well, obviously there's a law to be changed, and entire rafts of "intellectual property" lawyers to be hanged. I'll take the picture, and you can post an almost identical one. I won't care.



    Notice one thing about the Tannenbaum Helpern Syracuse & Hirshtritt website? You have to be a cyborg to read it. That's probably the single most boring website I've ever seen. But it makes sense for a lawfirm of evil robots.
  • Reply 66 of 90
    mr. hmr. h Posts: 4,804member
    Quote:
    Originally Posted by mazzy View Post


    A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself.





    Quote:
    Originally Posted by AISI View Post


    No, there may be infringement if the image is substantially similar to the original.



    Tannenbaum Helpern Syracuse & Hirschtritt successfully protected Psihoyos' copyright [amazingly, this was for the very same photograph!] in an infringement action against Microsoft and the ad agency McCann Erickson. Psihoyos v. Microsoft, 00 CV 5744 (RMB) (S.D.N.Y.).



    Andrew Berger ?Hey, That Looks Like Mine? The Law of Substantial Similarity:



    Thank you to both of you for these informative posts.



    I didn't know that the U.S. had a Copyright Office. The U.K. doesn't. All you have to do in the U.K. is assert copyright (by marking your book/document/back-of-postage-stamp/photograph/etc. etc. with a copyright symbol and your name) and that's it - no registration necessary.



    This thread had got me thinking about copyright in relation to images, as it seems slightly less clear-cut than copyright of written works or music. From Mazzy: "?a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance?".



    "different enough", "substantial amount", "minor changes", and "little substance" are all subjective terms that do not appear to be rigourously defined, presumably the terms are gradually refined by previous cases?



    Given, as far as I can tell, the court did not make a ruling in the previous case against Microsoft, it would seem that these terms are up for interpretation in relation to this particular image. So it is still debatable as to whether Apple has infringed copyright.



    The other question that remains is how much damage has been done to the artist by Apple? Whilst I think that if Apple is found to have infringed copyright they should be punished, I'm also of the opinion that the artist has not lost out - it's not like Apple are making money out of this image - the AppleTV would still sell if this image wasn't used in its marketing or during boot-up.
  • Reply 67 of 90
    swiftswift Posts: 436member
    Quote:
    Originally Posted by mazzy View Post


    Well I do know a bit about this since I represent commercial photographers. I think the photographer has a very good case. Whether or not his photograph is copyrighted does not matter however if he did register it prior to the violation, he can recover legal fees and get damages which could be significant. If it is not registed he still could win as he is the creator of the image, and is the legal copyright holder It also looks better in his favor since he was approached by Apple or their Ad Agency requesting usage of that particular photograph or concept prior to the infringement. That seems to proove it is not an accidental creative idea.



    Yes others have shot banks of video monitors, but the angles and colors are virtually identical here. I have won several cases where Agencies and photographers have copied the work of my artists. We always settle before any legal action is taken.



    They pay beforehand because it's more expensive. The law is crap, obviously.



    I used to work in a video control room. Lots of screens. Wall. If I had taken a picture?



    If we don't loosen the intellectual property laws, we're headed over a cliff with the elite owners of these crackpot legal constructs.



    The equivalent in text media -- ha, literature -- that if I wanted to write a story about a young prince whose father is murdered and he suspects the man who married his mother, I'd owe thousands to the Shakespeare estate. It's utter madness.
  • Reply 68 of 90
    murphywebmurphyweb Posts: 295member
    Quote:

    They pay beforehand because it's more expensive. The law is crap, obviously.



    No companies usually settle out of court when they know they are wrong and it also means details of the settlement are kept secret. The news that a large company with a great image has been ripping off artists does nothing for the share price or brand.



    Quote:

    I used to work in a video control room. Lots of screens. Wall. If I had taken a picture?



    Yes because the image in question is just a hurried snapshot of a video control room with a few screens dotted about. There was no thought or design to this image. Anyway if you had taken the picture you would be the creator of the work and therefore would deserve the same legal protection as anyone else.



    Quote:

    If we don't loosen the intellectual property laws, we're headed over a cliff with the elite owners of these crackpot legal constructs.



    No, if we do lossen the intellectual property laws then it would be just the final nail in the coffin of the the crazy win at all cost, capitalist, selfish and power hungry world that we live in now and that is literally destroying the world around us.



    Quote:

    The equivalent in text media -- ha, literature -- that if I wanted to write a story about a young prince whose father is murdered and he suspects the man who married his mother, I'd owe thousands to the Shakespeare estate. It's utter madness.



    And your alternative is? Someone spends 3 years of their life locked in a room writing what could be the greatest story ever told, they are on the breadline becasue they have never had anything published before, but they keep trying, keep dreaming. When the novel is finished it is fantastic, the first publisher to read it loves it and being the largest publisher in the world wants to publish it themselves. The Author wants $300,000. This after all is the authors only form of income and this represents 3 years work. The Publisher decides to instead pay a staff writer to rip the author off and they release the story under a different name, the author gets nothing, the publishing firm make millions from selling the movie rights. The movie company make millions, the actors in the movie make millions to star in it. The Author who made all of this possible makes nothing. How the hell would this be good for society?
  • Reply 69 of 90
    murphywebmurphyweb Posts: 295member
    Quote:

    Finally, if you take a good look at various posts I've made about Apple's Desktop lineup, QuickTime, the Finder, the iPod HiFi etc. etc. you will quickly realise that I am not a crazed Apple Fanboy.



    Then i owe you an apology then Mr H, sorry to confuse you with the fanboys, i realise that is no the case.



    Though my comments still stand, and posts such as this are ridiculous to the extreme...



    Quote:

    Oh, my God. Well, obviously there's a law to be changed, and entire rafts of "intellectual property" lawyers to be hanged. I'll take the picture, and you can post an almost identical one. I won't care.



    There is no law to be changes, the copyright law is there for a reason. Design agencies get payed bloody large fortunes by companies such as Apple to come up with original designs and advertising for their clients. Why should they be allowed to take the money and just copy someone elses work? Are you really advocating a world where your own creations, your own ideas and thoughts are not your own? Where something you have spent a large amount of time creating can just be copied by anyone for large profit while you make nothing?



    That is a world i would not want to be a part of, that would be a world with less art, less expression and less music. I can only assume that you have not really thought too much about this before posting that comment (and all the similar comments by other posters), i cannot imagine that anyone would seriously want to live in a world where copyright does not exist.
  • Reply 70 of 90
    swiftswift Posts: 436member
    You talk like I'm against copyright, because you're taking the point of view of the artist. I do too. This is not about that. Copyright is being broken by huge corporations that get Mickey Mouse, it would seem, in perpetuity. I think Walt has made his money on it, but Disney has been exclusive rights, and they do nothing but stifle creativity. 22 years is enough, or until you're dead, whichever comes first. Go back to the copyright law as the founding fathers (US) wrote it. You get exclusive rights over a work for a generation. After which, your intellect is dead so it doesn't have any more intellectual property rights.



    The question of intellectual property is never ridiculed as a cost of society which has gotten ridiculous. When Amazon can patent one-click, the jig is up. Instead, the tort lawyers, who help people sue giant corporations when they're injured, this is ridiculed. We don't need substantial tort reform in the U.S. We need copyright reform.



    Your rights to your story that it took you 3 years to write are not hurt by forcing a photographer to prove that an actual infringement on their photograph has taken place; it's just not enough if you have a similar idea. Ideas, in fact, shouldn't be copyrightable, it's the words that are copyrighted. Using similar verbs, or a similar story line, is not enough. Does Faulkner owe rights to the Bible? Or to anyone of the thousands of authors he read before? Only if he copies substantial amounts of words without attribution.



    There are millions of environments where we are exposed to control rooms, museum installations, and ads, that have multiple monitors. It's black in control rooms.



    In other words, I think the law has been distorted far too generously here. We live in a visual culture. Ideas aren't copyright.



    Say the Apple thing was a movie of an eagle. Would everybody who's ever made a similar photograph have a cause of action? Absurd.



    The truth about "intellectual property" is that its expansion in our age to include, it seems, everything, is that it doesn't favor the artist, it favors the large corporations that buy up intellectual property. It's a right that is really only accessible to the wealthy. To defend yourself, or claim restitution in court, costs enormous wads of money.



    But it's an issue that does dupe a lot of artists. It's like the record contracts people get: a huge loan shark operation and a protection racket.
  • Reply 71 of 90
    swiftswift Posts: 436member
    Thanks for the helpful insult.



    Did you do the code?



    The website is really, really boring.
  • Reply 72 of 90
    mazzymazzy Posts: 53member
    You should read up on how many times the singer Tom Waits has won litigation from Commercial Clients and Ad Agencies who specifically copied his voice for commercials. He does not do any commercial work and several AD Agencies have requested him to do so. He has declined every time but some have used sound alikes. Tom Waits has taken them to court both in America and in Europe.



    Apple should have changed the image much more maybe in color and arrangement. It is common fo Agencies to pay a photographer or stock house a comp fee to use images for presenation. The fee increases when it is used commercially.



    Here a recent example:



    Bay Area musician Tom Waits won a suit in Spanish court protecting his music from being adapted or imitated and used in commercials without his permission.



    His suit, against car maker Volkswagen-Audi and a Spanish production company that made a commercial aired in that country in 2000, was upheld this month on appeal. The original judgment was in March 2004.



    The Audi car commercial used a song very similar to Waits' "Innocent When You Dream," and was sung by someone mimicking Waits.



    The production company had asked permission to use Waits' music in its ad, but he had refused.



    Waits won two awards on Friday totaling 66,000 Euros ($79,807) in the Appeal Court of Barcelona.



    Waits has also recently sued the car company Opel, owned by General Motors, and the ad agency McCann Erickson in Frankfurt, Germany for a commercial aired in Europe that impersonated Waits' voice.
  • Reply 73 of 90
    julesjules Posts: 149member
    Quote:
    Originally Posted by alienzed View Post


    man, you're SO wrong, artists should not be the highest paid people. On the contrary, art should be free and I'm sure the majority of REAL artists would agree with me. Everyone needs money to live, THAT'S the problem.

    And holy f*ing christ! You can only write so many melodies and so many lyrics in the english language, whoever wrote the original had enough time to make his money between 1977 and 200*.

    ALL art is what we perceive twisted by our creativity, there is no such thing as PURE original work. Why do some people insist on punishing others for improving or re-rendering an idea. It's pride without the honor. Truly the new american way.



    What about a bit of recognition at least. Maybe a lot of artists aren't too worried about the cash, as it seems to spoil their heads, but they certainly would like a mention. Apple are a pack of cunts and wont give them either.
  • Reply 74 of 90
    You hardly ever find anyone who disagrees with Apple on these boards, no matter what. But I'm with the artists too, evidently Apple knew they would be in violation if they used the image, they were in talks with the artist and thing fell apart. I hope the guy sues their ass for a lump of money, this isn't the first time this has happened.

    Quote:
    Originally Posted by BrianMojo View Post


    Yeah, why is everyone so concerned with Apple here? If they were talking with the artist about using the image, it's clearly a violation of the artist's work. Come on guys, not everything Apple does is great.



  • Reply 75 of 90
    synpsynp Posts: 248member
    Quote:
    Originally Posted by Wojciechowski View Post


    So I can create a mouse that looks nearly identical to mickey mouse and make movies and a variety of other products with it's image and likeness, but as long as I don't call it "Mickey Mouse" I'm fine to do whatever I want with it????



    Sure you can. Do you think that the creators of "The Simpsons" and, by extension, "Itchy and Scratchy" are paying royalties to the owners of "Tom and Jerry"?



    That's inspiration.



    IMO the lawyers for Apple decided that there was little chance to lose such a trial, so they backed out. Whether that is correct or not remains to be seen.
  • Reply 76 of 90
    julesjules Posts: 149member
    Quote:
    Originally Posted by BlackSummerNight View Post


    You hardly ever find anyone who disagrees with Apple on these boards, no matter what. But I'm with the artists too, evidently Apple knew they would be in violation if they used the image, they were in talks with the artist and thing fell apart. I hope the guy sues their ass for a lump of money, this isn't the first time this has happened.



    I am not for Apple but I am not against them either. I get fucked off when I see corporations, by virtue of their size, fucking the little guy over, and that is the perception here. Somehow they seem to thing that its ok for them to steal ideas and then let things play out in court knowing full well that they have the time and the money to defeat basically anything that comes their way.

    I have invented a couple of gadgets that I have won venture investor capital for (finally, it has taken several years and this is all still very touch and go) but one key thing is that anyone investing drills into you how well you have to guard intellectual property, and that applies somehow on an artist level too - many artists and musicians are after recognition first and foremost and it is kinda galling that a large company can come along and lift your ideas. If what Apple has done gets out into the public forum (and dont you just hate trial by media...) then I'm sure Apple, along with any other company would quickly change their tune. It is for this reason that I dont really buy Apple products. This, and the unbelievable arrogance of their management regarding several recent product launches.
  • Reply 77 of 90
    a_greera_greer Posts: 4,594member
    Quote:
    Originally Posted by bkerkay View Post


    Uh.. how long has Apple TV been available, not to mention from the first time it was introduced? And only now does the photographer realize it looks like his picture. I'm not a professional, but do enjoy taking pictures If one of my images was copied, I'd be a little quicker in speaking up.



    Well, lets see here...6 months after release...lets imagine a timeline here:



    Lets say that the photographer doesn't buy/use an apple tv untill it had been out for say 3 months -- thus he was not aware of it...as soon as he saw it, he called is rep/agent/lawyer and says "they used the photo that they didnt wnat to license." so the lawyer/agent tries to negotiate a sort of post-fact license and remember, corprate negotiations go slow sometimes. maybe Apple just wouldnt pay up so this is their only option to get $$.



    The real problen here is that if they end up paying more in post-fact settlements than they would have for the original license (at this point I assume the settlement will be in the 7-to-8 figure range) the board could get in huge trouble with Wall Street and the SEC as it sounds like intentional fraud, but there are two sides to each story so lets see how it plays out.





    Apple may have had someone duplicate it in Photoshop too: would that be a legal problem? a sort of "bootleg"? If it is differant enough could they call it "parody" and get first amendment protection?
  • Reply 78 of 90
    vineavinea Posts: 5,585member
    Quote:
    Originally Posted by murphyweb View Post


    No companies usually settle out of court when they know they are wrong and it also means details of the settlement are kept secret. The news that a large company with a great image has been ripping off artists does nothing for the share price or brand.



    No...most companies settle out of court because its cheaper to do so. I've seen many cases where the company knows there's no merit in the case but going to trial costs more than the settlement itself.



    Vinea
  • Reply 79 of 90
    vinney57vinney57 Posts: 1,162member
    Neither action has any merit whatsoever.
  • Reply 80 of 90
    vinney57vinney57 Posts: 1,162member
    People have this concept of 'stealing ideas' completely arse backwards. You cannot protect ideas, you can only protect their implementation. I suspect Apple were trying to do the RIGHT thing by offering to buy the image. The concept itself is not exactly new; examples can be found all over the place (including my own work from 15 years ago!) The schmuck probably asked for some ridiculous amount of money and was politely told to go and self-procreate.
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