He claims, according to the report, that
“By commercially exploiting the plaintiff’s copyrighted image in the i.TV application without the plaintiff’s consent or licensure, defendant Apple has damaged the plaintiff while obtaining significant economic gains,” according to the complaint.
and seeks more that $2,000,000.00 in damages.
My question is, “Why didn’t he sue i.TV?”
My answer is, “They don’t have as much money as Apple,” even though, according to the story, the app developer gets 70% of the selling price of the app and Apple gets 30%.
I imagine that, as someone who makes his living with his skill with a camera, he was most distressed to find his work being used by someone else, much as I might be if I found one of my blog posts stolen by someone else (at the same time, as a small fry, I’d be gratified that someone noticed, but that’s another story). I have to wonder, though, whether his claimed financial loss is anything other than theoretical.
I visited his website. He does really good work and has some pretty high-falutin’ customers; some of his pictures are really futuristic and I can see them appealing to a geeky audience, like app developers. None of the samples I looked at was watermarked, though there is a copyright notice on the site (the bottom button on the menu on the left).
I can’t see having the allegedly purloined image in an iPhone app affect his customer base, though it could have conceivably cost him licensing fees.
Even that seems a stretch to me. If the app developers realized that the image was copyright and licensing was required, they probably would not have approached him for licensing; instead, they would have found or taken a different picture.
It will be interesting to see whether Apple fights this, settles (most likely with some sort of consent decree), or tries to get out of the middle by pushing it off on the developer.
Given the tight control Apple keeps over the Apps store (see here and here for examples), I don’t think the third possiblity will be feasible; “we didn’t notice and it’s not our fault anyway” probably will not work as a strategy, even though it might be a good description of what actually happened on a human level.