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Apple sued by photographer over 'Eye Closeup' photo

updated 07:20 pm EDT, Fri October 12, 2012

Photo used in keynote, advertising materials for Retina Display

Swiss photographer Sabine Liewald has filed a lawsuit against Apple for allegedly using her "Eye Closeup" photograph to promote sales of the MacBook Pro with Retina Display. Liewald claims in her court filing that Apple procured the image from agency Factory Downtown for layout purposes only, and not for any advertising campaign.

While not a US copyright, the work is protected under the Berne Convention, requiring its signatories to recognize the copyright of literary and artistic works from other signatory countries the same way it recognizes the copyrights of its own citizens. Switzerland and the US are both signatories of the Berne convention.

Liewald claims actual damages, including statutory damages for infringing use of the photograph, plus disgorgement of Apple's profits from use of the photo. Apple has not commented on the pending suit.



By Electronista Staff
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Comments

  1. aristotles

    Grizzled Veteran

    Joined: 07-16-04

    What a prick. What does "layout" purposes mean anyway? If they want to sue somebody, sue Factory Downtown.

    No actual damages occurred here. The photographer needs to contact the seller first and discuss what the actual terms of the contract were. If they sign over their rights over to the seller then they do not have a legal leg to stand on.

    Sabine Liewald, you are damaging your own reputation by your poor behavior. As a result of this, nobody will want to work with you in the future.

  1. Flying Meat

    Dedicated MacNNer

    Joined: 01-25-07

    Nobody buys for layout purposes. That's just stupid.
    You put a placeholder image in, if not a watermarked copy from the eventual seller, or a reasonable substitute of ones own making, or something similar from a free image library. Publication would require the real product, and therefore a fee would have to be paid if using copyrighted work.

    Nobody buys for layout purposes. :

  1. Wiskedjak

    Posting Junkie

    Joined: 06-04-02

    Maybe wait for more details to emerge before judging. You don't know that she DIDN'T speak with Factory Downtown first.

  1. aristotles

    Grizzled Veteran

    Joined: 07-16-04

    Originally Posted by WiskedjakView Post

    Maybe wait for more details to emerge before judging. You don't know that she DIDN'T speak with Factory Downtown first.


    It does not matter. A contract existed between the Photographer spelling out distribution rights and royalties and Factory Downtown. The photographer cannot go after the end user now if they already sold their rights on the cheap to Factory Downtown.

    This smells like greed and stupidity.

  1. Stuke

    Junior Member

    Joined: 02-11-05

    aristotles...completely agree with your point. The first contract was not directly between Apple and the photographer; therefore, the photographer must allow Factory Downtown to approach Apple if there is a case of infringement here. The rights to distribute the image in any way appears to be through Factory Downtown, and whether Apple used the image (as a result of the photographer saying they took it from Factory Downtown) in an appropriate or non-appropriate manner is a dispute between Factory Downtown and Apple. Credibility of the photographer...destroyed.

  1. Wiskedjak

    Posting Junkie

    Joined: 06-04-02

    Have any of you even looked at Factory Downtown yet? This is tiny agency that only represents 12 artists, and Sabine Liewald's name is at the top of the list.

  1. coffeetime

    Mac Enthusiast

    Joined: 11-15-06

    Originally Posted by WiskedjakView Post

    Have any of you even looked at Factory Downtown yet? This is tiny agency that only represents 12 artists, and Sabine Liewald's name is at the top of the list.



    Agency can be small size. I am working for one that has only 12 also. Only 3 are designers and the rest are production designer, marketing people, project managers, web coder, receptionist, and owners. My agency started in the early 90's. If Apple wants to use my work, I would like to have my name credited such as "this art work is contributed by Coffeetime from XYZ Agency".

  1. Wiskedjak

    Posting Junkie

    Joined: 06-04-02

    So many assumptions being made in this thread.

    Originally Posted by aristotlesView Post

    The photographer needs to contact the seller first and discuss what the actual terms of the contract were.


    You're assuming that Sabine Liewald hasn't already spoken with Factory Downtown. Given the size of Factory Downtown, I would be very surprised if she hadn't spoken with the agency first. For all we know, Sabine Liewald *IS* Factory Downtown.


    Originally Posted by aristotlesView Post

    If they sign over their rights over to the seller then they do not have a legal leg to stand on.


    You're assuming that Sabine Liewald signed over her rights to Factory Downtown. We have no knowledge of the actual relationship between Sabine Liewald and Factory Downtown. She could have signed over her rights, or Factory Downtown could be acting as a representative of her and gets compensated in ways other than rights.


    Originally Posted by Flying MeatView Post

    Nobody buys for layout purposes. That's just stupid.
    You put a placeholder image in, if not a watermarked copy from the eventual seller, or a reasonable substitute of ones own making, or something similar from a free image library. Publication would require the real product, and therefore a fee would have to be paid if using copyrighted work.
    Nobody buys for layout purposes. :


    You're assuming that Apple is you. A company like Apple may want to see how the *actual* photos will look in layout before purchasing the advertising rights.
    You're assuming that this photo was available watermarked.


    Originally Posted by StukeView Post

    aristotles...completely agree with your point. The first contract was not directly between Apple and the photographer; therefore, the photographer must allow Factory Downtown to approach Apple if there is a case of infringement here. The rights to distribute the image in any way appears to be through Factory Downtown, and whether Apple used the image (as a result of the photographer saying they took it from Factory Downtown) in an appropriate or non-appropriate manner is a dispute between Factory Downtown and Apple. Credibility of the photographer...destroyed.


    Again, you're assuming that you know the contract that was signed by Apple.
    You're assuming that you know the nature of the relationship between Sabine Liewald and Factory Underground.

  1. SierraDragon

    Mac Elite

    Joined: 03-22-04

    Everyone here is just blowing smoke until they actually see what contract language exists. In this case most likely is someone in the chain of custody of the image simply screwed up, but I guess the courts will determine that.

    Interesting to watch fanboys jump to Apple's defense with zero factual information in play. And what's up with dissing the photog? It is a nice image, and if someone used it illegally the photog should pursue litigation. Way too many ignorant low-lives think any image they see via the internet or in hard copy is theirs to use as they see fit.

    Photogs' rights are very strong, and all users of images are obligated to make sure that they have specific written permission for the usage intended before using the image. Once the fact that the photog actually took the image is clear (usually easy enough) the burden is on the user to prove the right to use the image.

    -Allen

  1. FireWire

    Mac Elite

    Joined: 10-03-99

    We're jumping in Apple's defense because we're fed up of people trying to scam Apple since they have a lot of money. First of all, there was no "profits" from the use of the photo.. at worst she can ask for a small amount for the use of her photo.. A few years ago people would have said "OMG!! see mom, Apple used my photo on stage! wow :)" now they are rich and people sue them over nothing all the time. Remember the iPad trademark? they basically said "had we known the other party was Apple, we would have asked for more".. By the way, don't you love companies that don't even say what business they're doing on their website?

  1. FireWire

    Mac Elite

    Joined: 10-03-99

    I'm not an expert in copyrights, but in my opinion, this should be considered fair use as it it only briefly shown to illustrate something, without monetary gain. Otherwise, Starbucks should sue Apple for when Steve called them on stage to demonstrate the iPhone... Come on Sabine, this is an honor, seriously... shut up!

  1. tcphoto1

    Fresh-Faced Recruit

    Joined: 10-13-12

    I see a lot of misinformed responses on this thread. I am a photographer and have licensed a number of images for Advertising, Editorial and other uses, so I understand the great range of fees that a project warrants. The Photo Agency will ask about the intended use of images, the length of time that they will be used and other questions to determine the fee. If Apple told them the images were not for Advertising, the fee would be on the low side but if they requested the image for Advertising, the quote would have been much greater. A contract would be drafted and both parties would sign off on the use and fee.

    I imagine that the Agency would call the photographer and inform them of the potential sale and the fee negotiated. It's not unusual that a Client comes back later and asks for additional use but not after the fact. The Library of Congress has laws concerning unauthorized use, if an image is registered the maximum penalty for unauthorized use is $150,000 per occurrence. I would think that Apple wants to settle this as soon as possible. If you think that I am wrong just Google Sketchers sued by photographer and see what comes up. The burden is on Apple to produce a Licensing Agreement stating they had the right to reproduce the image.

  1. FireWire

    Mac Elite

    Joined: 10-03-99

    Is it really an advertising if it's used briefly in the background of a speech? And you're talking about that crazy photographer who is asking for, this is not a joke, 250 millions? Sure, that one picture should really earn you more than the guy who invented the spaceshuttle... Photographers are crazy... ok it takes a minimum of talent but basically it's not rocket science.. I never found agreements very fair for the buyers... you pay for their time, that's fine, but they rip you off with the license... I don't mind paying 100-200 for a session, but why should I pay 500$ for a few pictures of the set? Same thing for a marathon here in Montreal.. the finish line photographe was asking for something like 30-40$ per photo! let's suppose only a fraction of people buy their pictures, let's say only 1000, that ears her 30 000$.. for a day..

  1. Wiskedjak

    Posting Junkie

    Joined: 06-04-02

    Originally Posted by FireWireView Post

    Is it really an advertising if it's used briefly in the background of a speech? And you're talking about that crazy photographer who is asking for, this is not a joke, 250 millions? Sure, that one picture should really earn you more than the guy who invented the spaceshuttle... Photographers are crazy... ok it takes a minimum of talent but basically it's not rocket science.. I never found agreements very fair for the buyers... you pay for their time, that's fine, but they rip you off with the license... I don't mind paying 100-200 for a session, but why should I pay 500$ for a few pictures of the set? Same thing for a marathon here in Montreal.. the finish line photographe was asking for something like 30-40$ per photo! let's suppose only a fraction of people buy their pictures, let's say only 1000, that ears her 30 000$.. for a day..


    If you don't like the restrictions of one photographer, go find a different one. You'll always be able to find a photog willing to give away their stuff for next to nothing. But, don't agree to the restrictions and then ignore them because you disagree with them.

    As for the "minimum of talent", maybe you should switch to this apparently easy money career if you think it's so easy to make bucket loads of cash as a photog.

  1. aristotles

    Grizzled Veteran

    Joined: 07-16-04

    Originally Posted by WiskedjakView Post


    If you don't like the restrictions of one photographer, go find a different one. You'll always be able to find a photog willing to give away their stuff for next to nothing. But, don't agree to the restrictions and then ignore them because you disagree with them.
    As for the "minimum of talent", maybe you should switch to this apparently easy money career if you think it's so easy to make bucket loads of cash as a photog.


    I don't think you are appreciating the reality here. Even if this photographer is right, they will lose even if they win. It will be a pyrrhic victory and it will leave them with their reputation and career in tatters. Nobody will trust them ever again.

    The best Sabine Liewald can do now is contact their agent and have them speak with Apple to negotiate a reasonable fee for the keynote and any other videos/materials produced by Apple where that image appeared. Continuing with the lawsuit will just leave them unemployable.

    I have a hard time believing their story and even it was true, they should go through their representative. What makes my perception of them even worse is how much money they are trying to go after Apple for. They have no right to profits and only have a right to a set fee.

    I find it interesting that a supposed "European" is acting like a greedy sue happy American. She knows full well that she does not actually deserve what she is asking for.

  1. SierraDragon

    Mac Elite

    Joined: 03-22-04

    Originally Posted by aristotlesView Post


    I don't think you are appreciating the reality here. Even if this photographer is right, they will lose even if they win. It will be a pyrrhic victory and it will leave them with their reputation and career in tatters. Nobody will trust them ever again.

    The best Sabine Liewald can do now is contact their agent and have them speak with Apple to negotiate a reasonable fee for the keynote and any other videos/materials produced by Apple where that image appeared. Continuing with the lawsuit will just leave them unemployable.

    I have a hard time believing their story and even it was true, they should go through their representative. What makes my perception of them even worse is how much money they are trying to go after Apple for. They have no right to profits and only have a right to a set fee.

    I find it interesting that a supposed "European" is acting like a greedy sue happy American. She knows full well that she does not actually deserve what she is asking for.



    You are the one who has no grasp on reality. YOU do not determine the value of any image, the photographer or agent negotiates the value of a usage very specifically. That is a contract. Use it otherwise and it is theft, happens all the time. If you steal from me I can either beat you up, or sue you. Litigation is the civilized response.

    It is and needs to be very very expensive to steal photogs' work, because people and corporations do it all the time and they need to be discouraged. It is the end user's responsibility to have a rights release in hand before using an image. Everyone in the image business knows that.

    The photog in this case will certainly suffer no "loss of reputation" if indeed her work was used without a release. Unless of course she or her agent actually did give the proper release, in which case the lawyer who filed the suit made a serious mistake.

    You and FireWire are ignorantly blaming the (alleged) victim. Blaming the victim is a loathsome thing to do. Personally I say let's get some facts, but odds are Apple or its agents screwed up and will end up paying big bucks for thievery.

  1. Stuke

    Junior Member

    Joined: 02-11-05

    Everyone here is right...we don't know the facts, only impressions of the story's opening paragraph (credible or not)...

    Swiss photographer Sabine Liewald has filed a lawsuit against Apple for allegedly using her "Eye Closeup" photograph to promote sales of the MacBook Pro with Retina Display. Liewald claims in her court filing that Apple procured the image from agency Factory Downtown for layout purposes only, and not for any advertising campaign.

    So, if Factory Downtown doesn't represent the entirety of her work's use by a third party, then yes, she has a case. Otherwise, if they do represent her, she can't bring the lawsuit. And that is what most of us are addressing in our comments. Let's watch this one develop further. :)

  1. turtle777

    Clinically Insane

    Joined: 06-19-01

    Hurrah. They have gold-diggers even in Switzerland.

    -t

  1. SierraDragon

    Mac Elite

    Joined: 03-22-04

    Originally Posted by FireWireView Post

    Is it really an advertising if it's used briefly in the background of a speech?



    Yes. A highest-level sales presentation (not a "speech") by the biggest tech firm on the planet that millions have watched one way or another. And image usages are often priced based on how often they are viewed.

    Originally Posted by FireWireView Post

    Photographers are crazy... ok it takes a minimum of talent but basically it's not rocket science.. I never found agreements very fair for the buyers...



    Whatever are you babbling about? If an agreement is not fair do not enter into it, duh. Your Aunt Sally will shoot your pix for free.

    Originally Posted by FireWireView Post

    Same thing for a marathon here in Montreal.. the finish line photographe was asking for something like 30-40$ per photo! let's suppose only a fraction of people buy their pictures, let's say only 1000, that ears her 30 000$.. for a day..



    WooHoo an easy $30k. For sure you should go do it yourself since "basically it's not rocket science."

    You might first think about how many dozens of free kid soccer games and ski races you will have to trek your (heavy) $10k+ gear to and how many hours it will take to give away all those soccer shoot pix just to get the experience, competence and contacts to maybe get the opportunity to shoot a big event. FYI rule of thumb is 10,000 pix with a new camera before you are good enough with the gear just to competently shoot the kids' soccer. And also be aware that when some spectator knocks over your $10k setup you just run out and get it repaired, no problem except that it is hella expensive and may take months. And be advised that you basically need redundancy of everything in place on every job if you are going to pretend to work professionally.

    Also know that the event organizers at such marathons will not let you shoot a profit-making setup for free. But when half your gear gets stolen do not expect them to pay for it.

    And you do know that you need to be capturing competent images of almost every runner, all moving at 5-15 mph and getting in each other's way. Otherwise the organizers will not sell you the privilege to photo the finish line. That works out to something like 50,000 competently-captured multiple-moving-subject images in two hours. But do not worry it's not rocket science. Oh and sometimes it rains, but you will still need to create 50,000 competent captures without trashing your $10k gear. There is a reason pro photogs buy $6,000 Nikon D4s instead of $600 D5100s.

    Of course promptly processing and presenting 50,000 images and offering them for sale will be no problem for you, after all it's not rocket science. And managing 1000 individual payments I am sure you can easily do, no overhead there; it's not rocket science.

    Enjoy your profitable new career. After all it takes a minimum of talent.

  1. aristotles

    Grizzled Veteran

    Joined: 07-16-04

    SierraDragon, you obviously have no understanding of what "morality" is. You can be "right" according to the law but still be in the wrong from a moral and ethical perspective. Revenge leads to death and destruction.

    You can win a lawsuit but lose the respect of everyone including yourself. Also, money has no value unless if you give it away. If you don't understand these concepts then you will never be truly happy.

    I make a lot of money and I can buy shiny bobbles and toys like this fully loaded Retina MBP but ultimately, the only true lasting joy that I can find is when I give my money away to those in need or buy something for someone else.

    That photographer could be completely right and yet their greed in seeking ridiculous amounts of money will leave them miserable and without any future work or any true friends.

    If none of this sinks in then you love money more than life itself and you are lost.

  1. Spheric Harlot

    Clinically Insane

    Joined: 11-07-99

    And you know that the money she's not getting from this licensing deal is not the only thing keeping her from replacing her six-year-old Photoshop computer and losing her home due to forclosure, how exactly?

    You're quick to judge, and frankly, if the licensing terms are clear, I have no idea why you're seeing anything wrong with her demands.

  1. SierraDragon

    Mac Elite

    Joined: 03-22-04

    Originally Posted by aristotlesView Post

    SierraDragon, you obviously have no understanding of what "morality" is. You can be "right" according to the law but still be in the wrong from a moral and ethical perspective. Revenge leads to death and destruction.



    Who are you to in total ignorance assume some self-righteous observation about my morality? Or to suggest that I value money a lot (fact is I do not, not that it is any of your business with all your "bobbles" [sic]).

    Not saying you are one (how would I know?) but your ignorance of right and wrong in image usage is skewing your perceptions much like a bigot has skewed perceptions.

    Wrong is firms and individuals using photos without a written usage agreement to do so. It happens all the time, managers just looking the other way, "no one will ever know." The rules are very clear, and the Apples of the world are very aware of them even if you are not.

    Selling usage of a fine image in a highest-level sales presentation branding a firm like Apple to millions is the kind of thing that many photogs see once in a lifetime. It literally may pay for decades of scrimping as a starving artist.

    What is "unethical" is for anyone (especially a large firm fully aware that they have zero rights to use any image without a written usage agreement) to use such an image, literally stealing someone's livelihood. If someone steals from you the proper response is to ask the courts to resolve the theft.

    "Immorality" is to without facts come down on a victim who (allegedly) was stolen from. You should be ashamed.

    The fact that some like you and FireWire disrespect photography and consider photographs a low-value proposition just expresses your ignorance. Fortunately your ignorance does not define right and wrong - or photo values - for the rest of us. That is what we have courts for.

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