Apple sued over alleged misuse of photo in MacBook Pro promotion

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  • Reply 81 of 121

    Quote:

    Originally Posted by SGreenberg View Post


    the Berne Convention, not Byrne.



     


    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.

  • Reply 82 of 121
    gatorguygatorguy Posts: 24,176member

    Quote:

    Originally Posted by jragosta View Post





     Most lawyers try to reach an agreement with the other party before suing... 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.


    ??? 

  • Reply 83 of 121
    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.
  • Reply 84 of 121
    gatorguygatorguy Posts: 24,176member

    Quote:

    Originally Posted by cfm2003 View Post. Another possibility, Apple didn't like the photo provided and re-staged a different, but similar one, and used that in its promotions.


    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. 

  • Reply 85 of 121
    Sabine... she's a girl
  • Reply 86 of 121


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

  • Reply 87 of 121


    Originally Posted by rupert1020 View Post

    This "guy" is called Sabine, she's a girl... ;-)


     


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

  • Reply 88 of 121

    Quote:

    Originally Posted by DESuserIGN View Post


    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.



     


    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.

  • Reply 89 of 121
    dasanman69dasanman69 Posts: 13,002member
    Is this where someone says, "Sabine, eh? Well she can Free State my unrecognized disputed territory any time…"? :lol:

    Damn you beat me to it.
  • Reply 90 of 121
    hmmhmm Posts: 3,405member

    Quote:

    Originally Posted by Tallest Skil View Post


    Let's go back and look at another case like this: the iPad's default Springboard image.


     


    The guy responsible for it didn't know Apple had used it until a friend told him, right? And what did he do afterward? He was honored and probably saw a surge in popularity/publicity of his other photos.


     


    That's how you take a situation like this.



     


    Quote:

    Originally Posted by mvigod View Post



    I hope apple lawyers crush this guy. However like most cases they will both probably settle on something




    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.


     


     


     


     


    Quote:

    Originally Posted by Tallest Skil View Post


     


    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.



     


    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.

  • Reply 91 of 121
    hill60hill60 Posts: 6,992member

    Quote:

    Originally Posted by Frac View Post





    Oh puleese....

    Since when is probably a successful business proposition? Flattery pays no bills.


     


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

  • Reply 92 of 121

    Quote:

    Originally Posted by Dookie Howsre View Post



    He or she needs to drive their Ford into the nearest fjord.


     


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

  • Reply 93 of 121
    dysamoriadysamoria Posts: 3,430member
    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.
  • Reply 94 of 121
    desuserigndesuserign Posts: 1,316member


    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.]


     


    Quote:

    Originally Posted by EricTheHalfBee View Post


     


    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.


  • Reply 95 of 121
    jragostajragosta Posts: 10,473member
    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.

    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.
  • Reply 96 of 121
    gatorguygatorguy Posts: 24,176member

    Quote:

    Originally Posted by jragosta View Post



    If Apple used a stock photo from a stock photo web site, there would have been a license amount listed... 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


    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

  • Reply 97 of 121
    fracfrac Posts: 480member
    cfm2003 wrote: »
    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.

    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.
  • Reply 98 of 121
    zoetmbzoetmb Posts: 2,654member
    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.

  • Reply 99 of 121
    jragostajragosta Posts: 10,473member
    gatorguy wrote: »
    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.

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


    gatorguy wrote: »
    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

    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.
  • Reply 100 of 121
    mrstep wrote: »
    I
    Or maybe he could have just asked them for the going rate for using an image instead of being a lawsuit happy wanker, especially considering that they clearly DID license it in the first place and most likely missed the fine print saying it was layout only?

    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
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