Artist Sues Apple for Photography Copyright Infringement

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Copyright Photographer Sabine Liewald has sued Apple for copyright infringement, accusing the company of using one of her photos to promote the MacBook Pro with Retina Display without a license. The photographer is asking for damages that include Apple's profits relating to use of the image, as well as statutory damages.

According to PatentlyApple, Ms. Liewald's claim said that Apple requested a high resolution version of her image from her agency, Factory Downtown, for layout purposes only. Ms. Liewald's page at the Factory Downtown site includes this specific image, which is called Eye Closeup.

This request did not include the acquisition of rights to use the image in advertising, and the complaint alleges that Apple was fully aware that it had not secured the necessary permission to use the image from either Ms. Liewald or Factory Downtown.

The complaint alleges that Apple informed the agency that it did not intend to use the image for advertising purposes. It also claims that Apple did so anyway, and mentions advertising, Apple's keynote address in which the device was introduced, and "related advertising materials."

The following exhibit was included in the complaint, which was filed with the U.S. District Court - Southern District of New York, as noted by PatentlyApple.

Complaint Exhibit

Complaint Exhibit

At the time MacBook Pro with Retina Display was announced, Apple used Ms. Liewald's image to demonstrate Photoshop. MTV Geek grabbed this screenshot from Apple's site on June 11th, the day the device was first shown.

Image

Sabine Liewald Image at Center of Copyright Infringement Lawsuit

Apple is currently using the image below to show off Photoshop. It' snot clear who owns that image or if it was changed as a response to this suit.

New Photoshop Image

Apple's Current Photoshop Demonstration Image

Copyright image made with help from Shutterstock.

Comments

palenoue

Having worked in graphic design with small, large and very large businesses, I can attest to the fact that the larger the art department the more likely mistakes over purchased rights happen.  I agree that Apple should have triple-checked on this, but I have seen mistakes like this happen several times before.

Terrin

Interesting, the author of this story takes the position Apple did something wrong without a response from Apple.

Bryan Chaffin

Indeed, Terrin. I frequently take positions that are either in support/praise of Apple or critical of Apple without statement from the company.

We separate such opinion from the news in the form of The Mac Observer Spin.

That aside, the point of this particular Spin was less about this specific charge and more about the broader issue of Apple having a bright spotlight on it for anything and everything relating to IP.

As panenoue suggested, if Apple did indeed infringe on this particular copyright, it was probably an accident. My point, which I’ll iterate here, is that Apple has to be careful and not mess this stuff up.

Thanks to both of you for the comments—consider registering. We’d enjoy your participation here at TMO.

dhp

“I can’t be the photographer for the world,” said Ms. Liewald.*


*Not really.

Terrin

I am a registered member, but you guys changed something and I no longer can automatically long in and I can’t find my old information.

My only point was you take the position that Apple “does what it pleases.” The natural implication is Apple just prances about not caring about IP and then pays if somebody complains. You use the Swiss Clock story as an example, which I find odd.

In the iPod, Apple listed quite a few classic watch images to let users have fun and make their iPods look like watches. There are several classic Disney watch faces as options, which Apple probably licensed because Disney is not complaining. The Swiss watch face has been around a long time, and it is completely reasonable for somebody to have mistaken it for a work in the public domain.

Moreover, you didn’t see the Swiss people rushing to sue. In the press, the representatives were quite classy saying they were going to talk with Apple about it and didn’t want to publicly make demands as it would only irritate Apple who they were proud Apple used their design. In return, Apple probably agreed to reasonable compensation with no Court action.

In this case, this is what likely happened. Apple gained some rights for the work. It made a mistake and thought it had more rights than it had, and used the work. The right’s holder discovered this and demanded from Apple and unreasonable rate for the work. Far more than Apple would have ever asked if Apple hadn’t made the mistake. It sued Apple knowing that for each instance of copying, the rights holder can demand $150, 000 even if the rights holder was not damaged. That can add up quick, and puts tremendous pressure on Apple to settle under the gun.

We love to talk about patent reform in this Country, but where we really need reform is with copyright law. It is odd that for an idea to be patented it actually has to be useful and novel. It is then protected for twenty years. A copyrighted idea doesn’t have to be useful or even original, but we protect it for over a hundred years. When somebody violates a patent, the penalty is only actual damages. That is why Judge Posner threw out the litigation between Apple and Samsung. He claimed the parties couldn’t prove damages. Copyright statutory damages are $150, 000 per copy and again damages do not have to be proven.

I believe, Copyright protection started off with a ten year term, and patent law a fourteen year term. Patent protection recently went to twenty years,  and copyright law has been extended to over a hundred years. As originally was the case,  patent law should be longer than copyright law because it protects something that has to be novel and useful. The difference why the terms are so dramatically different is company lobbyists fight each other keeping the terms short for patent law, where company lobbyists gang up against citizens to lengthen copyright protection. Citizens have no lobby.

So I take the Swiss example as a role model of how these things should be handled and instinctively side with Apple in this case.  I also take this latest incidence as an example of why copyright law really is where things need reform.

Bryan Chaffin

Hey Terrin, I thought that was you, but decided I should err to the side of caution. Send me a note so we can straighten out your login—I apologize for the trouble.

Your points are well taken—particularly on the need for IP reform—but I stand behind the notion that Apple has to be on its toes on this stuff.

I’ll add that Apple has a mixed history on asking please ahead of time, something that colors my opinion on this topic.

Oh, and Ms. Liewald is Swiss.  I should have mentioned that in the piece.

Lee Dronick

“A copyrighted idea doesn’t have to be useful or even original, but we protect it for over a hundred years.”

If I remember it correctly the copyright was extended because the rights to the original Disney characters were expiring. Not Mickey Mouse, which is trademarked, but Minnie Mouse, Donald Duck and those from that era. Money talks in Congress, Disney got the the time of copyright extended.

daemon

“That is why Judge Posner threw out the litigation between Apple and Samsung. He claimed the parties couldn’t prove damages.”

Judge Posner presided over Apple vs. Motorola, not Apple vs. Samsung as of yet. He may get a chance yet tho!

“My only point was you take the position that Apple “does what it pleases.” The natural implication is Apple just prances about not caring about IP and then pays if somebody complains. “

That’s exactly what Apple does… Have you not paid any attention to Apple at all?

Bosco (Brad Hutchings)

I liked her press release:

“We can sit by and watch competitors steal our copyrighted photographs, or we can do something about it. We’ve decided to do something about it,” said Ms. Liewald. “We think competition is healthy, but competitors should create their own original images, not steal ours.”

Kunvay

We agree whole-heartedly.  Apple tough enforcement of its own copyright and intellectual property rights has made it a sitting target.  Using this photo without permission wasn’t a smart move.  We just hope they get better at handling this these IP issues in the future, though in a company of its size, it’s bound to happen from time to time.

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