Photographer Sues Apple Over the Use of Her Photo to Promote the Retina Display

Apple is constantly engaged in its fair share of courtroom battles, but its latest one hits a little closer to home for photographers. Swiss photographer Sabine Liewald has filed a lawsuit against Apple for using her “Eye Closeup” photograph to promote the 15-inch MacBook Pro’s Retina Display.

Liewald claims that when Apple approached her agency (Factory Downtown) to request a high-resolution version of the photo, the company had said the image would only be used for “layout purposes” (AKA “comping“) and not in any advertising campaign.

The photographer was then surprised when Apple did exactly what it said it wouldn’t do. When the company’s keynote address was held last year to introduce the new portable computer, the photograph was featured prominently in the promotional images.

In addition to statutory damages for copyright infringement, Liewald is also demanding “actual damages including defendant’s profits.” Apple is the most valuable company in the world, and its profit figures come with quite a few zeros; the photographer is going for serious money here.

Grab your popcorn, folks — this might be interesting.

(via Patently Apple via Cult of Mac)

  • Andre

    Good. I am an Apple user, but if the photographer is entitled to it go right ahead. We all know Apple loves a good courtroom battle.

  • Neoracer Xox

    wow cant believe they used an image without authorization!

  • newamericanclassic

    ehh, maybe Apple will patent-troll the makeup design.

  • peter25253

    yeah sue apple.. they deserve it. //%& company..

  • Mansgame

    As an Apple hater, this pleases me. Also as a photographer.

  • Magnum Shots | PHOTO

    it looks from here, that like many times, Apple tried to get it the cheaper way, ask for the image under specific grounds and end up using it for a mayor campaign without paying for it. I hope Sabine wins this one

  • Tim

    Goes on ALL the time. From little companies like the children’s jigsaw app (junior jigsaw) who stole my cow photograph and chose to re-write the app rather than pay me a penny, to big companies like Apple and Gap who recently awarded a couple of thousand to someone i know for using a photo on their billboards without permission, Nobody has much respect for gazillion new photographers flooding the market these days, Apple probably took the view that since they’d paid the photographer already they wouldn’t complain when they pushed the boundaries a bit (a lot). After all, being able to tell your friends that Apple bought one of your photographs is worth much more than cold, hard cash. Right?

  • Alan Dove

    She’ll settle out of court for an undisclosed (but probably not huge) sum, unless she really wants to lose an expensive court battle. The demand for “defendant’s profits” is just a bluff. It’s also possible that her agency screwed up the contract. In any case, I hope she gets fair compensation for the advertising use of her photo.

  • Tim

    sorry correction, the app that stole my cow photo is called Jigsaw Junior. A quick search tells me that they’re still using my cow photo to advertise their app, even if they have removed it from the app itself.

    The point is, companies will get away with anything they can. I hope the photographer takes Apple to the cleaners and gets at least a six-figure sum, then companies big and small will think twice about exploiting us small folk.

  • Tim

    The trouble is she probably will settle out of court, if she’s got a case she should take them all the way and make an example out of them. It’s the only way to stop penny-pinching marketing depts exploiting the flood of new and naive photographers.

  • peter25253

    yep the company turbosquid once used one of my 3d renderings for their advertising. after i wrote them they removed it.
    but no excuse or any reply from them.
    companys have the best lawyers and care a sh** about image copyrights.

  • Antonio Carrasco

    All she has to do is point to the photograph used as the Windows XP background and how much that photographer raked in and she should be entitled to a comparable sum.

  • Keiran Blackwell

    Here here! I do very much hope she takes the court route, IF she has a case, if there were issues with contracting through her agency, and such things I think settling might be better.

    There’s this terrible scenario in my head where Apple successfully defends itself and some horrible abuse of precedent takes place. (I know this is super unlikely, but Apple are pretty good at that (ie, slide to unlock patents))

  • SenseiScott

    Professional photographer, but I’ve worked as Art Director/Creative Director enough times to know that occasionally, especially on big campaigns with lots of departments interacting, mistakes like this happen. The photographer is absolutely entitled to her due, and she’ll get it, but my guess is this is negligence, not malice. No one at Apple would intentionally steal a photo to save a thousand dollars on a million-dollar ad campaign. But whoever forgot to get the clearance is kicking themselves, probably all the way to the employment line.

  • ShootCannons

    Interesting, but does anyone proofread these articles before publishing them?

  • Michael Zhang

    Ah, we left out a few words. Words are important… Thanks :)

  • Mute

    Agreed, she has a solid case, and while she may not get the extra damages she wants a win usually means the defendant pays your court costs. Although I’m sure there’s also some caveat that says if the defendant made the claimant a good offer the court can decide to ‘punish’ them for wasting court time by not awarding costs.

    I’m not a lawyer but this is the impression I get from blog articles and re-runs of LA Law.

  • natums

    I’m sure whoever screwed this up is probably getting a few dirty looks from higher ups at Apple…

  • anon lawyer

    There are cost-shifting provisions in some statutes, not many, and the general rule in the United States is that parties pay their own costs. I don’t think she can recover costs here. There is a law in most jurisdictions that if a party makes a settlement offer, and then the case goes to trial and the other party recovers less than the amount of the offer, the party making the offer can recover “costs”–but not lawyers fees. In some cases, costs can be considerable but it is usually lawyers fees that are the big dollars.

    And, it seems wildly unlikely that Apple would have intentionally tried to save a few grand on this photo for a multi-million launch–almost certainly a screw up somewhere. That it has ended up with a lawsuit suggests that she, or her lawyers, are being unreasonable.

  • G

    Apple hater.. but why? Either like it, or don’t care.. what’s hate gonna get you? I’m always amazed at how for instance Android users seems to have an “at least it isn’t Apple” attitude, while Apple users rave about why they like the product. Whose the happiest you think? The hater, or the one who gets pleasure from the product she/he actually owns?

    And for all the following commenters bound to call me a fanboy now: at least I enjoy my products.

  • Mansgame

    Well I used to like Apple in the 80’s. The problem is that Apple fans used to be (and many still are) super smug about their choice of platform. Everything would start with “Apple can do that better”. Then when the iPod came out, they acted like MP3’s never existed before.

    As a computer fan, I can’t support closed platforms. I build my own computers and like having choices on laptops. I like getting my music from other sources than DRM heavy iTunes (not sure if they still have that). I can also write my own Android software if I choose to since it’s all online for free. So far, I haven’t got too far past “Hello world”. If there was a market for that, I’d be rich.

  • G

    Don’t underestimate the market for “Hello world” ;) I do think you have valid points. But dislike smug Apple users, ignore Apple and enjoy the hardware you have instead.

  • Jay

    this will never see a courtroom. Unless she gets too greedy.

  • Ahmed Karam

    The iPod did everything better that’s why it was much more successful than any other MP3 player. Like you said iTunes is DRM free. To each their own, but the main reason Apple is so succesful is because of their ecosystem. Call it a closed platform, but that’s the reason it works so well. I have an android phone and I hate it (galaxy s3) I’d rather use my iPhone4 than it.

  • Ninja Life Tips

    I guess this photographer can now stop taking photos.

  • John Kantor

    She deserves to be paid for the use – but no company will ever hire her again.

  • John Kantor

    Anyway – it’s not “her” that’s doing it. It’s a scumbag lawyer that talked her into it.

  • FlaPapiChulo904

    It’s not their ecosystem. It’s their marketing. Plain and simple. Their marketing team is the only real genius in the company these days. That and their legal team.

  • lionelhutz1

    Apple most likely made a big “oops” and had an internal miscommunication over the rights they bought for the image. And now they know they have to pay. They will settle with her, and she will be happy.

  • hansolo

    That’s a really interesting perspective. If this is the case, Apple will pay and not fight.

  • passerby

    Idk, I’m not a lawyer, but even if it is a screw-up… if you pay for something (in this case, the right to use somebody else’s property for a specified purpose that does not monetarily benefit you in any way) and misuse the item to get something other than what you paid for (in this case, use of somebody else’s property for a purpose other than the agreed upon purpose and in a context where the use of property is expected to monetarily benefit you) then it seems to me you are violating the terms of the contract. People breach contracts all the time both accidentally and purposefully, but an accidental breach is still a breach. Apple took more than they paid for and they now owe the photographer some cash. No need to take it to trial unless they try to say they don’t owe it or she and her lawyers are stupid, but it’s not unreasonable to demand what you’re owed when somebody has taken more than they’ve paid for.

  • loopyduck

    (not sure if they still have that)

    Not on music anymore. Credit where credit is due re: Jobs’s letter against DRM. They do still have it on videos and ebooks, however; maybe because they feel it affects fewer people?

  • Ragekage

    If by “rave about why they like the product” you mean “let everyone know why their product is the future of products and any other products are made by satan” then yeah, totally. Also people hate Apple because their interface isn’t intuitive, customizable, or (in cases like transferring certain kinds of documents) even usable. This gets in the way of connecting and sharing like computers are supposed to do.

  • Xbrotha

    good because they have the money to win?

  • Snow

    He’s right. I’ve worked in corporate design for 20 years, and no credible design agency or department would use unlicensed imagery in advertising. The risks are just too well known. The licensing costs can be high for major corporate advertising campaigns, but companies are *well* aware of this, and budget for it. This is a stupid mistake that failed to be picked up before they ran it.

  • KTHaunteR

    Win what…They will 100% lose because it’s a fact not an opinion. I doubt it will even make it to court. They’ll just pay her out and be done with it.

  • RadioDolphin

    Yeah, but this is apple, for all we know, they might turn around and sue her for using a camera with rounded edges without agreeing to their terms of service or something like that. (No but seriously I agree with you).

  • shmatt

    That’s not really true. They got rid of the embedded drm within the files, but you still have to authorize them. So you can’t just give your buddy an itunes aac file, it requires apple id and password to play it.

  • loopyduck

    From personal experience, I can say that it does NOT require authorization. If it did, one would not be able to play it in an external player on a computer that has never had iTunes installed. Try it out for yourself if you don’t believe me. Now, if the file you speak of was downloaded when DRM WAS still embedded, yes, you wouldn’t be able to play THAT song without authorization. Only music sold after the changeover can be freely played. Removing said DRM is a charge of 10 or 20 cents, I think, bringing the total price of that song up to par with how much songs cost now.

  • Dana Sibera

    I’m not sure Apple are all that diligent with respect to clearance. Seconds before Steve revealed the iPad to the world for the first time, he stood below a giant projection of a Powerbook 100 – it wasn’t just any powerbook 100, it was my photograph of my powerbook 100, nabbed from either Wikipedia or Flickr.

    While I’m happy for it to have been used however needed by anybody who wants, the free licenses I was able to select for those sites at the time were a little fuzzy on promotional use for events like keynotes. Was it commercial? probably. Was it derivative? not really. Did those licenses cover those events? I can’t say for sure, I’ve been lax when it comes to precisely defining how free my photographs are.

    Apple, however, wouldn’t have known my attitude and could only go by the licensing indicated – and nobody contacted me about using the image beforehand.

  • Norm Cooper

    hope she can wait a looong loooong time while the lawyers duke it… only lawyers win in these case

  • guest

    so verry mature to pretend you sit on the high road while making silly generalizations about both android AND apple users. a fanboy is who froths at the mouth to defend, and blinds themselves with silly biases. great you notice that about yourself.

    I couldn’t give a rat’s ass either way as I have an iPod and an android tablet. but… why? either like it, or don’t care. don’t make godawful stupid comments about literally everyone by sorting them into “apple” or “android”, then making idiot stereotypes. what’s idiocy gonna get you?

  • Glich

    I would say 3x the going rate + attorney’s costs sounds about right. Big companies play fast and louse with the crap way too often

  • herp

    There’s nothing funny about it, that’s how it works.

    Licensing a picture for a small website or small print batches is a lot cheaper than licensing the same picture for an international advertising campaign.

    So the photographer sues for the difference and a little extra.

  • hurr durr

    Yes, scumbag lawyer talking a client into suing for money she rightly deserves.

    What an asshole.

  • deeeeerp

    That’s not how it works.

    Apple didn’t “hire” her. Apple bought the rights to one of her pictures for a specific purpose: comping.

    Apple then used said picture in ways they weren’t given the right to, and the photographer sues because if Apple approached her saying “we’re going to run an international ad campaign with your picture” she could have asked hundreds of thousands of dollars and still sell herself cheap.

  • Reıd

    Isn’t Aramco the largest company in the world? (source: contracts)

  • Charlie

    Oh, that’s so Steve!

  • Nick Beagin

    Of course Apple just made a mistake – yes that sounds right – a mistake. Just like they mistakenly copied the swiss clock design without permission and then had to do a deal retrospectively. Pure arrogance.

  • Joe Flambe

    What type of contract was signed regarding their photograph and what type of usage rights were given to Apple?

    it’s the duty of the photographer to draw up some form of contract for their work, this is really simple stuff regarding artwork.

    If they have exclusive rights to use the photograph, they won’t have a problem. But, you have to tell the photographer what you’re going to use the image for and Apple should know this by now.

    But, then again, Apple used the Swiss Clock idea for their own clock and now they are getting sued.