She & Them: Photographer Loses Copyright Battle Over Profits with Apple
Apple’s Commercial Uses Copyrighted Image Without Permission
A federal judge has ruled that Apple doesn’t have to share profits with a photographer over their infringing use of an image in an iPhone commercial. This lawsuit started when prominent fashion photographer Taea Thale snapped a promotional photo of the band She & Him. Hipster actress Zooey Deschenel (of TV and movie fame) is one half of the band duo and a former Apple endorser. Ms. Thale registered her copyright to the photo and then licensed it with Merge Media for band promotion. That license prohibited specifically the use of the photo to hawk other products.
Apple would later air a commercial for 2 weeks in 2010 that advertised its iPhone 3GS. The 30 second commercial was a montage of images showing the iPhone’s latest innovations, including including album cover art. 5 seconds of that commercial used Ms. Thale’s image of She & Him as part of the montage, despite Apple never getting permission to use it. When a royalty check never arrived from Apple, Ms. Thale sued the company for copyright infringement.
So What’s the Harm from Apple’s Infringement?
Ms. Thale’s lawsuit asked specifically for profits from Apple’s sale of iPhones that the infringing commercial promoted. The Court, however, shut this claim down. A copyright lawsuit typically complains of infringement that creates direct profits for the offender. A musician who rips off lyrics profits directly from album sales. An author who steals a plot from another writer profits directly from book sales. And a magazine that uses photos without permission profits directly from subscription sales. The facts of Ms. Thale’s case, on the other hand, could only support that Apple profited indirectly from its infringement. Apple didn’t profit by people viewing its infringing commercial (rather, it likely paid large sums to air the commercial), but could only have profited indirectly through the sale of the iPhone on the back end.
Ms. Thale’s copyright claim ultimately failed because she couldn’t prove Apple profited from its infringement. Apple’s copyright infringement was not an issue. In a claim for indirect profits, however, the plaintiff must offer concrete evidence of that profit. The Court decided in this case that the facts showed that Apple only hoped to generate iPhone sales from the commercial. Ms. Thale didn’t offer any actual proof of boosted profits and could only speculate that the commercial generated increased iPhone sales. The Court also noted a logical and reasonable argument (such as Ms. Thale’s) is still just speculation and does not add up to proof of profits. It’s not enough to show there is some relationship between the infringement and profits, there must be a cause and effect relationship between the two.
Does Apple Just Get Away with its Copyright Infringement?
Apple is not off the hook just yet. The Court only decided Apple doesn’t have to share profits. Ms. Thale can continue to seek damages for any actual harm that Apple’s infringement caused her (e.g. her lost profits!). This case teaches what’s necessary to make a claim when infringement creates indirect profits.
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Ari Good, JD LLM, is an experienced Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters. For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to firstname.lastname@example.org. Visit goodattorneysatlaw.com for more information.
Image by Mindy Bond