Feeds

back to article Swiss photographer sues Apple for pilfering her eyeball

A Swiss photographer has filed suit against Apple in a US District Court in New York, alleging that Cupertino's marketeers used one of her photos without her permission in its MacBook Pro with Retina Display flack attack. "Despite representing that it did not intend to use the photo and knowing that it had not obtained a license …

COMMENTS

This topic is closed for new posts.

Page:

Bronze badge

Swiss Cheese Time?

Maybe Apple will get an EARfull for that EYEpull?

All Aplle had to do was just put on a new layer various strokes, some rouge, new eyelashes, and a generic, uncopyrighted face. What? Is Apple too poor to just do it legit?

Ironic, that an artsy firm lifts well-known or violations-discoverable works of a represented and known Artist.

7
2
Anonymous Coward

They

Will have paid one of those photo depositories but she wants more.

2
48

Re: They

It sounds like they may have paid for a specific-use, some people do license on a 'not to be used in advertising' basis after all. So I don't think it sounds like a case of, she's been paid but wants more. Sounds more like they may (or may not) have paid something, but didn't have permission to use the image in the way they have.

The only way we'll know is if it goes to trial, except it won't because they'll likely settle

10
3
Anonymous Coward

Re: They

> Will have paid one of those photo depositories but she wants more.

Did you read a different article to rest of us or is that just wishful thinking?

The photograph, taken by fashion photographer Sabine Liewald, was obtained by Apple from Liewald's New York agent, Factory Downtown, for "comping"

I know that bit was probably just past the first page on your idevice but if you swipe your finger gently upwards on the screen you should be able to read the entire article.

52
1
Thumb Down

"All Aplle had to do was just put on some various strokes and an uncopyrighted face"

... or, Apple could have just paid a little license fee and showed some appreciation ... but hey, "We're Apple. We can do what ever we want" ... remember, these is the same company that cries foul, all the time, over design choices other companies include in their products, Apple considers it their own design ...

26
1
Silver badge

Re: "All Aplle had to do was just put on some various strokes and an uncopyrighted face"

It's almost certainly an oversight. Big companies don't normally knowingly invite lawsuits over what - to them - are trifling amounts.

6
13

Re: Swiss Cheese Time?

"All Aplle had to do was just put on a new layer various strokes, some rouge, new eyelashes, and a generic, uncopyrighted face."

they would still need to paid for derivative works.....

5
0
Silver badge

Re: an oversight

Otherwise known as "we're Apple. We don't care, we probably don't need to" ?

13
1

Re: "All Aplle had to do was just put on some various strokes and an uncopyrighted face"

Possibly but there are usually many checks to ensure content is correct and appropriate for use. It seems a little odd that this slipped through the net. That having been said, I do agree with you, it was probably an oversight.

1
1
HMB

Re: "All Aplle had to do was just put on some various strokes and an uncopyrighted face"

"It's almost certainly an oversight. Big companies don't normally knowingly invite lawsuits over what - to them - are trifling amounts."

I upvoted you (I think you're bang on the money), as for the 5 downvotes, it must be the linux Jihad started against you.

2
10
Silver badge

Re: "All Aplle had to do was just put on some various strokes and an uncopyrighted face"

I very much doubt this was "We're Apple, we can do whatever we want". If you've ever worked with anyone from marketing, they really don't get anything other than "ooh look, pretties". They made some comps using this image, showed it to someone higher up in marketing who just looooved it, and then it went on from there. It is marketing 101 behaviour.

1
3
Stop

Re: an oversight

Yeah, let's attribute malice when stupidity would suffice as an explanation.

0
0
Silver badge

Re: she's been paid but wants more.

If the license Apple bought explicitly denied use for commercial purposes, she hasn't been paid.

Particularly dealing with a fashion photographer I'd expect that sort of license requirement and Apple were just plain stupid to not pay attention to the details. I mean they're dealing with the only people on Earth who more vigorously protect their copyrights than Apple does. Apple would be smart to settle out of court by just asking "how much should the check be?"

0
0
Silver badge

Re: almost certainly an oversight.

Not a chance. Big companies like Apple also don't do anything without a raft of lawyers signing off on it first. Lawyers who are supposed to be on the watch for just those sorts of terms and clauses.

0
0
Silver badge

Re: don't get anything other than "ooh look, pretties".

The creative types yes. But every successful marketing department consists of at least one business type paired with one or a few creative types. And nothing gets done without the business type's okay.

...

Alright, the reality is nothing get done without the business type pushing it.

0
0
Anonymous Coward

so...

I know to my cost that this is not all that uncommon.

This is what has happened to me (three times so far)

Photographer takes a snap and puts it into a photo library.

Company Ad agency sees snap and says 'we like that and are going to use it'.

Ad agency pays library and they use the snap.

Ad Agency neglects to pay Photorgrapher

Snapper sees ad beingused and wonders why they have not been paid for it's use

In my case, I issued a DMCA Takedown notice for breach of copyright. This got the Company's attention. I got a very nice letter from their lawyers explaining that they had indeed paid a licence for said images. They included the details of the payments made to the Photo Library.

I removed all my images from the Library and sued them for triple damages just like the RIAA do to unfrtunate downloaders. Remember here that they had been paid for the images but hadn't paid even $0.01 to me.

They ignored my suit until I won and sent in the bailifs.

The snapper here should probably have sued the library but hey it's Apple (or rather their Ad Agency) who has used it so lets sue Apple and get some free publicity.

12
10
FAIL

Re: so...

Perhaps you may want to re-read the account of what happened? There was no library involved, Apple got the thing FROM THE ARTIST'S AGENT for comping, then used it in publication.

If you follow the link that El Reg provided, you'll see that the agent (Factory Downtown) is nothing like a library, and everything like a, well, agent.

32
1
Bronze badge
Facepalm

Re: so...

"The snapper here should probably have sued the library but hey it's Apple (or rather their Ad Agency) who has used it so lets sue Apple and get some free publicity."

No..

The snapper should sue the GUILTY party. The ones who did something wrong.

The objective here is to get the artist fairly compensated for their work. Compensation paid by the person or organisation that used the image without permission. Not to find an arrangement of references, anecdotes of limited relevance, and omission of fact that make Apple look like the injured party.

7
0
Silver badge

Re: so...

"The snapper should sue the GUILTY party. The ones who did something wrong."

Ideally, prior to suing, the snapper should simply send them a letter or email pointing out the infringement and stating their normal fees for such usage. We've no idea here (because the article doesn't tell us), if she skipped directly to the lawsuit or if there is some dispute. Lawsuits should not be a first resort and you can often get a quicker resolution without them.

4
1
Alien

Re: so...

Ah yes... That is after all the strategy Apple is using in its approach to allegedly rights violations?

5
1
Silver badge

Re: simply send them a letter or email pointing out the infringement

Nope, been there, done that, bought the tee shirt. It rarely ends well.

First letter is always a registered letter from the lawyer spelling out exactly what has to happen. Problem is Jobs had an ego the size of the former Soviet Union, and infused his company with it. They get that kind of letter and their immediate reaction is to fight it. Big mistake. Especially going up against the only industry where everybody has an ego just as big as Jobs did.

0
0
Anonymous Coward

cheque

17
0
Anonymous Coward

Seems exactly like the sort of thing that could be resolved by simple negotiation instad of wasting the courts' time.

It's not like the photo wasn't available for sale....

But I guess any legal settlement this way will be larger.

2
7

It's not like the photo wasn't available for sale....

True, but they didn't buy it did they?

I agree it should be negotiated rather than litigated, but she's well within her rights to go straight to suing. Lets face it, Apple can't exactly complain about anyone deciding they don't want to negotiate (at least not with a straight face)

21
2
g e
Silver badge
Holmes

Right. Now think about it in a real way.

You think apple has nicked your photo and you think 'I know, I be fluffy and "fair" and write to apple, no need for courts here.'

(You can already see where this is going, can't you)

2 years of being ignored by apple (and probably being threatened with countersue's) you decide to take it to court.

Like you should have done in the first place as it will get their proper attention from day one.

16
3
Windows

Seems exactly like the sort of thing that could be resolved ...

"Seems exactly like the sort of thing that could be resolved by simple

negotiation instad [sic] of wasting the courts' time"

That's what the agent should have done. That's what agents do. That's why photographers use agents. Baffled as to why people comment on stuff they know jack about. Perhaps people just like to parade their ignorance?

6
1
Anonymous Coward

How do we know that attempts weren't made at negotiation?

2
0

"Seems exactly like the sort of thing that could be resolved by simple negotiation instad of wasting the courts' time."

If they haven't already tried negotiation the court would send them to arbitration before hearing the case.

Unless the artist is launching the suit first to get publicity, you'd assume Apple didn't like the invoice she sent.

After all when the biggest tech company in the world has seemingly publicly broken copyright so blatantly she'd surely up her rates a bit.

0
1
Silver badge
Holmes

"How do we know that attempts weren't made at negotiation?"

Attempts ARE being made at negotiation.

Slapping in an official legal complaint and demanding a trial ARE negotiations. It's establishing a strong position in negotiations and displaying a willingness to go the distance. Anything else is just a vague, empty threat.

It won't go to trial, and that is right and good, because a trial would clearly be a waste of time and money. I'm still not sure why the article vaguely implies that a Settlement rather than Trial would be less of a positive result.

0
1
Coat

Did she try

A simple phone call? Probably not. I live in Switzerland, and it's funny, because I always hear the Swiss make fun of Americans for being sue-happy. But they also pretend they don't like to drive cars, shop on Sundays etc. you should see the traffic when a store is opened on a Sunday...

4
12
Flame

Re: Did she try

Why should she make the phone call? Apple couldn't be bothered, they just went ahead and used the photo, maybe by accident, maybe on purpose. Calling them up and getting the regular fee won't remind them that they shouldn't do that sort of thing, taking a big buck out of their pocket may.

1
2

Re: Did she try

Her agent would have tried negotiating already. The court would send them to arbitration before it would consider the case otherwise.

More likely Apple didn't like the size of the bill she sent them.

7
2

Re: Did she try

Why did this get downvoted by so many? Have you seen the froth when a Migros opens on a Sunday in CH?

2
4

RE: Why did this get downvoted

37th Rule of El Reg: querying downvotes encourages more of them.

0
2

This post has been deleted by its author

Anonymous Coward

Re: Did she try

Sorry Davedmo, your comment verges on supporting Apple. The sheep round here don't like that kind of thinking at all.

1
4
Anonymous Coward

Eyeball

That story about the eyeball in Florida is now solved: it's a warning from Apple.

7
0
Anonymous Coward

So the Swiss person is going to make a packet from them using a picture of her green eye? Just need to work out how to get them to use a picture of my brown eye for a fat cheque!

3
7
WTF?

Jealous much?

She produced an image which was good enough to be used by a mega-corp in an advertising campaign. Said mega-corp (and here it really doesn't matter who) used the image for commercial purposes against her wishes and she is sueing them for damages as a result.

If you were good enough to produce an image to be used in such a way and it was used without your permission you too would be pissed. And this is happening to photographers, both amateur and professional, far too often.

Hope she does "make a packet from them using a picture of her green eye".

21
0
Anonymous Coward

Re: Jealous much?

You've made a very important point - this is happening to photographers far too often. Maybe she could have just made a phone call and Apple would have paid her but that way would it have got into the news.

Corporations large and small need to realise that they aren't God like and the rules that apply to people like you and me also apply to them.

It probably was an oversight by Apple but it could well have been "We're Apple, you're a nobody so be grateful that we think your work is good enough to advertise our products".

I really hope she publishes the final settlement figures.

9
0
Silver badge
Meh

Re: Jealous much?

Part of the settelment will be that she can't publish or share the terms of the agreement. We will never know how much they give her. Which is good for Apple as it keeps people from suing all the time but sucks for photographers because you don't know how much to really ask for.

My educated guess (having sold a few photos) is $5k total settlement with the shark taking 1/3. But it's unlikely we'll ever know...

0
1
Pint

*doffs cap for outstanding use of the phrase "brown eye" and everyone missing it*

2
0
Silver badge

"Just need to work out how to get them to use a picture of my brown eye for a fat cheque!"

Gay magazine?

0
0
Silver badge
Happy

Re: Jealous much?

"My educated guess (having sold a few photos) is $5k total settlement with the shark taking 1/3. But it's unlikely we'll ever know..."

Hell, no. Much more.

A trial would be negative publicity and expensive to the tune of $100ks. Apple will pay ten times your stated amount to avoid that. And frankly: She has their balls in a vice right now.

0
0
Anonymous Coward

Re: Jealous much?

So in typical commentard fashion, Apple mush be guilty because a claim has been made against them.

0
2
Bronze badge
Headmaster

Re: Last paragraph of story

Inq are reporting that Apple HAS now licensed the Swiss Rail clock.

0
0

Re: Last paragraph of story

Which would be why they've linked to a story saying the same ;-)

4
0
Thumb Up

Yet another example...

...Of Apple taking something someone else has done (once again, as per Steve Jobs in 1996, "shameless about stealing great ideas") and using it as their own without a care for the true owners of that IP. They did it with the SBB clock, and they did it here...and they did it at Xerox way back when. The difference here is that the creators of these items of IP made sure they owned the rights to them.

Now Apple is getting some of their litigious medicine. Good.

18
1
Silver badge

Just claim its an orphan work

and give her 30p less a £20000 administration charge so she owes them.

0
7

Re: Just claim its an orphan work

Can't be done since they already stated to the photographers agent they would not use it for advertising. Not even a company as arrogant as Apple would be that stupid.

2
0

Page:

This topic is closed for new posts.