Once Again Apple Uses Image It Didn't License: This Time Photographer Sues

from the don't-they-have-lawyers? dept

Lawyers for big companies tend to be notoriously careful to make sure the companies license images they use for marketing purposes, for obvious reasons. And yet... Apple seems to keep using unlicensed images. It's really quite surprising. A couple of years ago, we wrote about how the default wallpaper for the iPad was used without licensing it. In that case, the photographer, Richard Misrach, was thrilled, saying that he was sure that a contract was on the way, and whatever was in it would be fine: "I'm sure they'll send me [a contract] quickly now. But I'm very happy, I'm sure it's fine, and the terms are good." I don't know if that experience made Apple confident it could do the same sort of thing again, but Misrach's response is not quite the norm. And Apple is now discovering that as it will have to deal with a lawsuit from photographer Sabine Liewald.

As detailed at the Patently Apple site, Liewald has sued Apple, claiming that it used her photograph as part of the marketing around the MacBook Pro's promotion for its Retina Display.
The first link above, to the MacObserver story, notes that Apple is now using a different (though similar) image of an eye. However, Liewald claims that Apple had requested Liewald's image from her Factory Downtown page, but for layout purposes only. It sounds like someone then got confused over whether or not they had actually licensed the image. Again, it's really surprising that Apple isn't a lot more careful about this kind of stuff. Liewald is apparently claiming that she's entitled to both "actual damages including defendant's profits" and statutory damages. That sounds like a lawyer just trying to push the company to settle faster -- and I wouldn't be surprised if Apple cuts Liewald a decent check pretty quickly to make this go away. I can't imagine that it pays to fight this lawsuit.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    DannyB (profile), Oct 16th, 2012 @ 2:31pm

    Don't they see the irony?

    Don't they have lawyers? Of course they do.

    Don't they see the irony in suing over trivial intellectual property, and then infringing upon others' intellectual property. At least be consistent.

    Steve Jobs: they shouldn't steal our technology, they should invent their own.

    Now leaving aside for the moment whatever we might think of round corner rectangles, bouncy scrolling, double tap, etc; if you believe in IP, then shouldn't you be extremely respectful with other people's IP?

     

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  2.  
    identicon
    Anonymous Coward, Oct 16th, 2012 @ 2:43pm

    Re: Don't they see the irony?

    Its the age old adage:What's Apples is Apples and what's everyone else's is Apples as well.

    Apple suffers from an extreme case of self entitlement.

     

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 16th, 2012 @ 2:46pm

    You always leave us hanging on the /interesting/ points:

    "I'm sure they'll send me [a contract] quickly now." -- Well, did they? -- And if not, what's he out? He still has his original image, right? -- And then, where does it fit into the Techdirt "exposure is so valuable you don't need to be directly paid" notion?

     

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  4.  
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    Zakida Paul (profile), Oct 16th, 2012 @ 2:59pm

    Re: Don't they see the irony?

    Apple's lawyers are too busy looking for ways others are infringing their IP that they don't have time to make sure Apple aren't doing any infringing.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Mike Dee, Oct 16th, 2012 @ 3:07pm

    Re: You always leave us hanging on the /interesting/ points:

    I find it interesting how you cry about piracy but never hold your beloved corporations up to the standard of copyright and related subjects.

     

    reply to this | link to this | view in thread ]

  6.  
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    Zakida Paul (profile), Oct 16th, 2012 @ 3:13pm

    Re: You always leave us hanging on the /interesting/ points:

    Miserable little scrote. Complain every day about the writing style of the various contributors and still comes back. Idiocy.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    iNetMANN, Oct 16th, 2012 @ 3:18pm

    Romey called it!

    Obviously Apple thinks they are part of Romney's 47% that think they are 'entitled'.

     

    reply to this | link to this | view in thread ]

  8.  
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    Zakida Paul (profile), Oct 16th, 2012 @ 3:23pm

    Re: Romey called it!

    There's a thing. Romney goes on about how 47% feel entitled to government handouts but ignores the fact that his rich pals in the biggest corporations feel entitled to government assistance in maintaining their monopolies. Hypocrisy and double standards? I think so.

     

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  9.  
    identicon
    Anonymous Coward, Oct 16th, 2012 @ 3:50pm

    Re: Re: Romey called it!

    The fact is that more than 47% of americants are dependent on the states teet in one way or another (including the likes of some rich pals). A far more interesting comment that mit made at that dinner was about the u.s. debt and money printing problem. The only real buyers of u.s. government debt is the fed!!

     

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  10.  
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    Anonymous Coward, Oct 16th, 2012 @ 4:17pm

    Damages for copyright infringement are either a right holder's actual damages and infringer profits atttributable to the infringement OR statutory damages. One cannot collect both, so it is likely the complaint lists both in the alternative.

     

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  11.  
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    MrWilson, Oct 16th, 2012 @ 4:49pm

    Re: You always leave us hanging on the /interesting/ points:

    I /so/ missed the /use/ of forward /slashes/ for /emphasis/ while you were /gone/.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Oct 16th, 2012 @ 5:37pm

    Re: Re: You always leave us hanging on the /interesting/ points:

    Some turd clearly wasted good money on grammar lessons for him. Newsflash: education is only effective when you're not a screw-up like out_of_the_ass.

     

    reply to this | link to this | view in thread ]

  13. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 16th, 2012 @ 7:58pm

    Re: You always leave us hanging on the /interesting/ points:

    Reposted to avoid censorship:

    "I'm sure they'll send me [a contract] quickly now." -- Well, did they? -- And if not, what's he out? He still has his original image, right? -- And then, where does it fit into the Techdirt "exposure is so valuable you don't need to be directly paid" notion?

    When will you guys learn that the report button isn't made to shut people up?

     

    reply to this | link to this | view in thread ]

  14.  
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    Wally (profile), Oct 16th, 2012 @ 8:35pm

    Apple Going Downhill

    There is only one reason why this happened. Steve Jobs died. One of the major things he made sure to happen was that copyrighted photographic works never ended up in any of their products unless liscensed.

    This is now Tim Cook running Apple. iOS 6 got rushed with tons of errors and no need to discuss Apple Maps. It's noted too that iOS 6 should have been delayed until perfected but Cook wanted it rushed in like the Macintosh IIci. So yeah, Apple muffed, but I would not go too far into speculation on this case as that photo may not be the same one in question.

    Also, you can use HTML code to prevent your photographic works from being used as public domain.

     

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  15.  
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    Wally (profile), Oct 16th, 2012 @ 9:05pm

    Mike Mansick, Apple went to Sabine Liewald's agents to get permission. You missed this part of the supposedly biased article you mentioned above.

    "Apple obtained Plaintiff's photograph from Plaintiff's agent, Factory Downtown. Apple requested a high-resolution file of this photograph for "comping" (or layout) purposes only, and was fully aware at all times that it had not acquired any rights to use the photograph in advertisements without obtaining additional permission from Plaintiff or Factory Downtown."

    So here's the problem. Apple asked Factory Downtown to use the photo as a layout or template to demonstrate the color gamut in Retina Display. They were given permission by Factory Downtown to use the photo but were somehow not given the legal documentation to prove they had permission to do so. Demonstrations do not need licensing so word of mouth is permissible as an agreement. Now Apple is being sued by the holder of the photograph after they were given permission to use the photo by Factory Downtown....who just happens to be liscensed to distribut the photo.

    So it's really quite a legal conundrum for Sabine Liewald. The people he liscensed the photo to gave permissible use of said photograph to Apple. If anyone has ever seen Retina Didplay as much as I have, it doesn't take much convincing when you can see cracks in the skin of a person on a 480x960 4th Gen iPod Touch display. The point in Retina is that there is no bezzeling of the display.

     

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  16.  
    identicon
    Anonymous Coward, Oct 16th, 2012 @ 11:16pm

    Re: Re: You always leave us hanging on the /interesting/ points:

    It's called public moderation and it exist for the sole purpose of cleansing the bullshit. Like the filth you spew from your sewer hole of a mouth. "I mean fingers I think.."

     

    reply to this | link to this | view in thread ]

  17.  
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    The eejit (profile), Oct 17th, 2012 @ 12:45am

    Re:

    Which is still ethically grey, if you subscribe to the belief that artists need to get paid for any use of their works.

    Moreover, this is also legally grey is you consider that the item was supposed to be used solely for demo purposes.

     

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  18.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 1:27am

    Re: Don't they see the irony?

    of course, unless you are Apple or one of the entertainment industries, who also dont give a toss about infringing others rights or property

     

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  19.  
    identicon
    Me, Oct 17th, 2012 @ 3:04am

    Re: Re: Don't they see the irony?

    Apple users suffer from the same thing...

     

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  20.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 3:41am

    Re:

    No, he addressed that in his write-up. The thing is, permission was given for layout purposes, not for production and sales. They used the image on the final product, but changed it after they were served papers. Doesn't seem to be that big a conundrum for the rest of us.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 3:55am

    Re: Re: You always leave us hanging on the /interesting/ points:

    Seriously, this again?

     

    reply to this | link to this | view in thread ]

  22.  
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    Ninja (profile), Oct 17th, 2012 @ 4:19am

    Re: You always leave us hanging on the /interesting/ points:

    ootb, you are confused. Sit down and take a deep breath. Now read carefully: this article is about commercial exploitation of the work. And file sharing clearly is not commercial exploitation.

    I know, it's hard for you, maybe even shocking. But you'll have to deal with this fact.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Ninja (profile), Oct 17th, 2012 @ 4:21am

    Re: Re: You always leave us hanging on the /interesting/ points:

    Oh the child is back! Click the pink link dear, you'll see magic happening as the comment is suddenly shown again. Go ahead, we are right here supporting you!

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    abc gum, Oct 17th, 2012 @ 5:02am

    Re: Re: You always leave us hanging on the /interesting/ points:

    It's called hypocrisy, apparently some are blind to it.

     

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  25.  
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    abc gum, Oct 17th, 2012 @ 5:06am

    Re: Romey called it!

    Corporations are people my friend.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    abc gum, Oct 17th, 2012 @ 5:09am

    Re:

    Apparently you need to read the articles again.

     

    reply to this | link to this | view in thread ]

  27.  
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    Ninja (profile), Oct 17th, 2012 @ 5:14am

    Re: Re:

    Apparently he did not read at all.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 6:55am

    Re:

    "Apple asked Factory Downtown to use the photo as a layout or template to demonstrate the color gamut in Retina Display. They were given permission by Factory Downtown to use the photo but were somehow not given the legal documentation to prove they had permission to do so. Demonstrations do not need licensing so word of mouth is permissible as an agreement."

    Wrong, boy.
    "Comping" is using low-res files for preparing "roughs", which are multiple versions of layouts to decide which one will be used for the final version.
    ANY other use, even in a/v presentations (whether in-house or public) is another matter, and involves a separate license and fee.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 6:57am

    Re: Re:

    "Demonstrations do not need licensing so word of mouth is permissible as an agreement."

    If you've been doing business this way, Wally, you're breaking the licensing agreement with your image vendor.
    (Goes to datbase to see if any of his clients are named "Wally".)

     

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  30.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 7:46am

    Re: Re: You always leave us hanging on the /interesting/ points:

    When will you learn that REPORTING a comment is not CENSORSHIP?

    I know the answer is "never", but here's hoping you figure it out eventually.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 8:12am

    I just wish Apple would infringe on something of mine -- that's one low hanging fucking fruit, with all the cash they have right now.

     

    reply to this | link to this | view in thread ]

  32.  
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    Benjo (profile), Oct 17th, 2012 @ 8:20am

    Re: Apple Going Downhill

    "Also, you can use HTML code to prevent your photographic works from being used as public domain."

    What does this even mean? Sounds like you are talking about HTML-based photograph DRM, which I can assure you either a) does not exists, b) does not work

     

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  33.  
    identicon
    Anonymous Coward, Oct 17th, 2012 @ 8:41am

    Re: Re: You always leave us hanging on the /interesting/ points:

    Reposted to avoid censorship:

    Now that went well!

    When will you guys learn that the report button isn't made to shut people up?

    When jackasses like you stop calling it censorship.

     

    reply to this | link to this | view in thread ]

  34.  
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    cheeflo (profile), Oct 17th, 2012 @ 11:37am

    Re:

    You are mistaken. If you've ever done business with stock photography houses, you would know that it's made abundantly clear that using an image for comping and using an image commercially are subject to different terms. Images are priced differently for different purposes based on exclusivity, audience size, editorial or commercial use, etc. If Apple requested the image for comping purposes only, then used it commercially, they DID NOT obtain legal permission to use the image, and the stock house and photographer have a legitimate grievance.

     

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  35.  
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    Wally (profile), Oct 17th, 2012 @ 4:46pm

    Re: Re: Apple Going Downhill

    You can write in HTML code that prevents right-clicking or any contex menu on the page. Also you can write HTML code preventing screenshots, inspections, clear cache and references (cookies) once the user has left the page, and even prevent saving anything from the page. So yeah you can DRM the hell out of a page using HTML code. It's the human element that made the problem.

     

    reply to this | link to this | view in thread ]

  36.  
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    Wally (profile), Oct 17th, 2012 @ 5:00pm

    Re: Re: Re:

    I read both articles to be exact. It is in fact the same photograph. My point is simply that it was a comp for testing and demonstrating. Also as The eejit kindly reminded me it is all a grey legal mess.

    The Retina Display's strength is that it provides a bit more clarity of images in lower resolutions. On my iPod, I see no difference between the clarity of a BluRay movie and the iPod's native screen resolution.

    So given the capability of scalibity, I'm sure that through this rather (unethical) legal mess, it really was meant for demonstrations. Since the image provided to Apple was meant to demonstrate the capabilities of Retina Display, it should be ok'ed. The problem is that the agent failed to notify the creator of the photo, hence the legal mess.

    Basically this means all three parties are at fault.

    I read the article which Mike had cherry picked from as well as this article. So I have a fairly good grasp on both sides of the issue.

     

    reply to this | link to this | view in thread ]

  37.  
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    abc gum, Oct 17th, 2012 @ 5:22pm

    Re: Re: Re: Apple Going Downhill

    ahem .... printscreen

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    abc gum, Oct 17th, 2012 @ 5:24pm

    Re: Re: Re: Re:

    Did they license the work for commercial use?

     

    reply to this | link to this | view in thread ]

  39.  
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    Wally (profile), Oct 17th, 2012 @ 5:42pm

    Re: Re: Re: Re: Re:

    It seems to me that it was handed over willy nilly by the Factory Downtown.

     

    reply to this | link to this | view in thread ]

  40.  
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    Wally (profile), Oct 17th, 2012 @ 5:45pm

    Re:

    Yes...because being successful is definitely evil...I don't see you scoffing at Google's success in buying up patents and buying out subsidiaries to make money.

     

    reply to this | link to this | view in thread ]

  41.  
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    Wally (profile), Oct 18th, 2012 @ 7:13am

    Re: Re: Re: Re: Apple Going Downhill

    Print Screen is how screen shots are made.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Courtney, Oct 23rd, 2012 @ 11:09pm

    Wally--Have you ever used licensed photography? When I was doing in-house graphics and web layout, the photo houses I bought art from generally allowed a comp image to be used free of charge. A "comp" image is ONLY meant to be used for non-published drafts, either in-house or to present as an option to a client. The only "presentation" that is appropriate for this kind of image is where you present the drafts with the different art options to the decision makers.

    Once you have chosen the art for the final piece, you agree to a different licensing agreement and then PAY FOR THE ART.

    If Apple used a piece of art in the final product without going through the final licensing process, in all likelihood, the artist and photo house haven't been paid for the work. That is stealing, not legal trickery designed to punish a successful company.

     

    reply to this | link to this | view in thread ]


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