A picture may be worth a thousand words, but New York-based photographer Taea Thale could not convince a court that her photograph was worth compensation after Apple included it a 2010 commercial. The U.S. District Court in Northern California granted a partial summary judgment in favor of Apple Inc., dismissing Thale’s claim for indirect profits from the tech giant’s alleged copyright infringement.
Thale photographed Zooey Deschenel’s band She & Him, licensing the picture to Merge Media Ltd. for limited use in magazines and posters to promote the band.
Though that license excluded rights to promote other entities or products, Apple used the photo in a national television commercial for the iPhone 3GS. The 30-second ad, Concert, aired between April 5, 2010 and April 18, 2010 and displayed Thale’s photo in a montage for not more than five seconds.
Thale sued Apple for infringement in 2011, seeking under 17 U.S.C. Section 504(a)(1) and (b), “damages in the amount of her actual damages and any profits of the defendant attributable to the infringing acts.”
The court identified a sole issue: whether Thale could show the required, causal nexus between her claimed infringement and indirect profits she sought under section 504 related to this commerical:
U.S. District Judge Yvonne Gonzalez Rogers agreed with Apple, finding Thale failed to “proffer sufficient non-speculative evidence to support a causal relationship between the infringement and the profits generated indirectly from such infringement.” Thale’s was misguided, the court said, in relying on decisions by the U.S. Court of Appeals for the Ninth Circuit in Polar Bear Prods. Inc. v. Timex Corp. and the U.S. Court of Appeals for the Eighth Circuit decision in Andreas v. Volkswagen of America Inc. The court said she misinterpreted these cases to only have a “nexus” requirement for damages for indirect profit, when, in fact, they call for a two-part analysis. First, Thale had the burden to show a causal nexus between infringement and gross revenue, and, only if that were established, would the burden shift to Apple to apportion profits not resulting from infringement.
Rogers also found Thale’s argument that the photo was the centerpiece of the commercial and helped promote Apple’s image was “irrelevant to the issue before the court.” The judge said these facts were immaterial to causation because they didn’t address the causal relationship between use and revenue, noting: “At best, Thale’s facts establish that Apple liked the photo, used it, approved of the Concert commercial, and hoped that it would generate sales of iPhones.”
Taea Thale attended the Brooks Institute of Photography and worked as an assistant to famed fashion photographer Michael Thompson in Manhattan. Her clients have included the New York Times, Wonderland, Paper Planes, Nylon, Intermix and INStyle, as well as JCREW and Starwood Hotels.