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.
It is not the idea that was copied, but a specific photographic image. When you negotiate usage fees, it is based on the scope of the use. Local ,Regional National, International. Then collateral, advertising, broadcast use and so on. Then one year, five or unlimited. That fee ususally expands based on that increased use and time. This is not subjective.
If I were negotiating on behalf of the photographer, I would probably negotiate it higher in this case. This is a huge usage of the image concept and will eventually make the photographer's image obsolete, making it worthless for future stocks sales (who would want to use something that emulates Apple). So this photographer would not be a schmuck by asking for a large use fee.
It is not the idea that was copied, but a specific photographic image. When you negotiate usage fees, it is based on the scope of the use. Local ,Regional National, International. Then collateral, advertising, broadcast use and so on. Then one year, five or unlimited. That fee ususally expands based on that increased use and time. This is not subjective.
If I were negotiating on behalf of the photographer, I would probably negotiate it higher in this case. This is a huge usage of the image concept and will eventually make the photographer's image obsolete, making it worthless for future stocks sales (who would want to use something that emulates Apple). So this photographer would not be a schmuck by asking for a large use fee.
But the image was not copied. The images are in no way identical.
It is a feature of internet forums that often people talk with great authority on something that they clearly do not know very much about, neglecting to add the necessary qualification such as 'I think', 'I believe' or 'a bloke down the pub told me'. As a couple of people have pointed out, you cannot copyright an idea. If you think about it for a moment you will realise what an absurd notion that is. Copyright law can be quite a grey area. In this instance, if Apple had just taken the original image and used it then clearly they would be in breach of copyright and would have no defence (even if they had no prior knowledge of the image that still would not alter that fact, but it would a mitigating consideration in any settlement.) However, with a similar image (or song or even passage of text), there is no hard and fast rule (how could there be?) and every case has to be dealt with individually on it's own merits. If you recall in the 'My Sweet Lord' case mentioned earlier the two songs were deconstructed note by note in court, and that court in that case decided there was sufficient similarity and awarded damages accordingly. The thing is, hiring lawyers and going to court is very expensive, the costs can often be far higher than any potential settlement, so it is in both parties interest to try and settle out of court as it will end up being cheaper for them both. Even if the accused party is not convinced of the strength of the case aginst them, they may still try to settle as the safer, easier and cheaper option.
Apple is a very rich and very litigious corporation, and although we do not know the nature of the negotiations I cannot help thinking that the photographer should have taken Apple's best offer as it may have been his only chance of making a profit on the deal.
As a couple of people have pointed out, you cannot copyright an idea.
Yes, this is also explained in the PDF I posted (Psihoyos v. Microsoft). But the point may be moot, if the idea and its expression are substantially similar in both photographs, there may be infringement. The expression of an idea is protectible.
Quote:
In determining the protectible elements, a court will distinguish between the idea underlying your work and its expression. Only the expression is protectible. The distinction between idea and expression is often elusive.
[…]
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.
(i) The idea behind both photos [is the same yadda yadda]
(ii) We argued the expression was also the same because each photo:
Yes, this is also explained in the PDF I posted (Psihoyos v. Microsoft). But the point may be moot, if the idea and its expression are substantially similar in both photographs, there may be infringement. The expression of an idea is protectible.
So the argument seems to revolved around the legal aspect of whether Apple has ripped someone off or not, when really the discussion should be centered on the moral issues, regardless of whether they can get away with it legally or not should a company like Apple really be copying other peoples ideas in the first place?
This makes for interesting reading, seems this is not the first time this has happened....
You all seem to be overlooking the fact that Apple was in negotiation with the photographer before hand, which means that they were in fact copying his work and knew it.
But the image was not copied. The images are in no way identical.
You must have some good drugs man. Apple asked the guy if they could use the image as basis, he said no and they made that anyways. And they aren't a little too close for comfort to you?
Why aren't they idential? Oh yeah because they removed the part that didn't make sense and replaced it with their product.
For their next trick apple should take a picture of you without you knowing it and use it to market the iPhone, but all they gotta do is strech the nose and lower the jawline a little bit in photoshop first. That's fair right?
Drivel, The image of walls of tv screens or film screens is to familiar to be called anyone's property. It's been around since the early 60's. I'm sure that's why Apple went ahead anyway. they tried to do "the right thing" and then gave up when the Artist's attorney started being a jerk.
Comments
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.
It is not the idea that was copied, but a specific photographic image. When you negotiate usage fees, it is based on the scope of the use. Local ,Regional National, International. Then collateral, advertising, broadcast use and so on. Then one year, five or unlimited. That fee ususally expands based on that increased use and time. This is not subjective.
If I were negotiating on behalf of the photographer, I would probably negotiate it higher in this case. This is a huge usage of the image concept and will eventually make the photographer's image obsolete, making it worthless for future stocks sales (who would want to use something that emulates Apple). So this photographer would not be a schmuck by asking for a large use fee.
It is not the idea that was copied, but a specific photographic image. When you negotiate usage fees, it is based on the scope of the use. Local ,Regional National, International. Then collateral, advertising, broadcast use and so on. Then one year, five or unlimited. That fee ususally expands based on that increased use and time. This is not subjective.
If I were negotiating on behalf of the photographer, I would probably negotiate it higher in this case. This is a huge usage of the image concept and will eventually make the photographer's image obsolete, making it worthless for future stocks sales (who would want to use something that emulates Apple). So this photographer would not be a schmuck by asking for a large use fee.
But the image was not copied. The images are in no way identical.
Apple is a very rich and very litigious corporation, and although we do not know the nature of the negotiations I cannot help thinking that the photographer should have taken Apple's best offer as it may have been his only chance of making a profit on the deal.
As a couple of people have pointed out, you cannot copyright an idea.
Yes, this is also explained in the PDF I posted (Psihoyos v. Microsoft). But the point may be moot, if the idea and its expression are substantially similar in both photographs, there may be infringement. The expression of an idea is protectible.
In determining the protectible elements, a court will distinguish between the idea underlying your work and its expression. Only the expression is protectible. The distinction between idea and expression is often elusive.
[…]
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.
(i) The idea behind both photos [is the same yadda yadda]
(ii) We argued the expression was also the same because each photo:
- list of similarities
Yes, this is also explained in the PDF I posted (Psihoyos v. Microsoft). But the point may be moot, if the idea and its expression are substantially similar in both photographs, there may be infringement. The expression of an idea is protectible.
Yep, lawyer food!
This makes for interesting reading, seems this is not the first time this has happened....
http://www.engadget.com/2007/07/05/a...g-off-artists/
But the image was not copied. The images are in no way identical.
You must have some good drugs man. Apple asked the guy if they could use the image as basis, he said no and they made that anyways. And they aren't a little too close for comfort to you?
Why aren't they idential? Oh yeah because they removed the part that didn't make sense and replaced it with their product.
For their next trick apple should take a picture of you without you knowing it and use it to market the iPhone, but all they gotta do is strech the nose and lower the jawline a little bit in photoshop first. That's fair right?
You hardly ever find anyone who disagrees with Apple on these boards, no matter what.
That is simply and quite evidently bullshit.