The unsettled nature of how copyright law applies to public works of art like murals continues to be frustrating in the extreme. We’ve already seen examples of how this becomes an issue with mural artists whose work briefly appears in unrelated works, such as music videos, as those works are filmed in public. You guys remember public, right? It’s that place we all get to coexist and enjoy together without constantly stomping on each other’s necks over intellectual property rights. Except we don’t anymore, as far too many artists believe that they can imprint their art in full view of the public and then disallow any commercial depiction of that public space.
And if that doesn’t sound idiotic to you, you need psychological care.
This is once again at issue, as Mercedes has asked a court to make it clear that murals appearing on public walls in the background of a few promotional photos of their vehicles is fair use. This is in response to the very threatening noises made by four mural artists to their murals appearing in the background of some Instagram images. To be clear, Mercedes is suing only to ask for a court to declare images, like the following, fair use, not to attack the artists themselves.
That partial mural in the background is one of the murals in dispute by the four artists. The mural is not the focus of the photo. It’s not the subject of the photo. It’s just that Mercedes took pictures of its vehicle driving around in public and those murals are in the background, partially depicted. Whatever that is, it sure doesn’t sound like copyright infringement, and sure does sound a hell of a lot like fair use. Which is exactly what Mercedes is asking the court to declare.
Mercedes has filed lawsuits against four artists after they accused the car company of infringing upon their copyright by including graffiti murals in the backgrounds of car photos posted to Instagram.
The Detroit News reports that in its lawsuits filed on March 29th, Mercedes is asking a federal judge to rule in its favor against claims being made by artists Daniel Bombardier, James “Dabls” Lewis, Jeff Soto, and Maxx Gramajo.
It was only a year after the photos were published that the artists began accusing Mercedes of copyright infringement. All that harm must have really been delayed, I suppose. As a symbol of their artistic dedication, even after Mercedes took the photos down from Instagram due to the complaints, those same artists continued to demand Mercedes pay them for the images. In its suit, the car company is arguing both that its use was fair use and that the murals are exempt from copyright as a matter of law.
Mercedes argues that its inclusion of the murals was fair use and that the murals are exempt from copyright protection under the Architectural WorksCopyright Protection Act since they’re permanent parts of the architecture.
Which seems like a bit of a stretch. Permanent is not the word I would use for graffiti, having seen it, you know, removed before. The fair use argument is much stronger, given the limited nature of the use, the fact that it wasn’t the subject of the larger use, and the damned fact that all of this is in full view of the public. Mercedes was using Detroit to sell its cars, not these murals. Calling this copyright infringement would make no more sense than a restaurant across the street from the murals being accused of replicating a public performance by putting in patio seating in full view of the mural.
So let’s hope the courts get this right and we get some caselaw to do with public murals.
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