Companies Should Take Note of This Street Artist Win
Crystal Broughan, Intellectual Property Attorney Nov 1, 2018 in Copyrights
A Los Angeles federal judge recently rejected General Motors’ attempt to dismiss a lawsuit by a street artist whose parking garage mural was used in a 2016 Cadillac ad campaign without permission.
That may seem like no big deal – after all, it’s not like the artist has won the case yet. However, it could open the floodgates for other street artists to sue for damages when their work is depicted without their permission.
The Street Artist’s Case
Adrian Falkner painted a mural on a Detroit parking garage in 2014. Then, in 2016, GM used the mural in a photograph on social media without obtaining permission. The image showed their 2017 Cadillac XT5 crossover parked right next to the bold graffiti art, and it was featured on GM-owned social channels on Facebook, Instagram, Twitter, and other platforms.
Falkner argued that the campaign damaged his reputation because he “carefully and selectively [approaches] any association with corporate culture and mass-market consumerism.” As such, his lawsuit is asking for $150,000 in damages from GM.
This might seem fairly straightforward at first glance. After all, GM used his art – his intellectual property – in a major advertising campaign without permission.
GM, however, disagreed.
They requested that the court dismiss the claim since the image “was not part of a larger campaign and was only posted on GM-owned social channels.” However, Faulker refuted this argument by pointing out that millions of people may have seen his art as part of the campaign through Facebook, Instagram, and Twitter.
GM also argued that their use of the mural was based on a part of copyright law that allows for photographic depictions of architectural works. In other words, their picture was of a parking garage – an architectural work. Since the mural is painted on that architectural work, that should make it free to use.
There’s some precedent for this.
Years ago, Warner Brothers was sued for a scene in Batman Forever that showed the courtyard of a building with an artist’s sculptural work in it. The artist, Andrew Leicester, believed that they should not be able to film his work without first obtaining permission. But the judge rejected his claim, arguing that it was part of the architectural design and therefore covered by the exception mentioned above.
So, why did the judge in Falkner’s case not accept this argument? Because there was a key difference: Leicester’s sculptural work was designed as part of the structure of the building. It was a piece of the architectural design. Falkner’s mural, in contrast, was created after the garage had already been completed.
In other words, graffiti, murals, and other types of street art that are added to buildings after the fact are not protected under the architectural design loophole. And if they are used without permission, those responsible can potentially be held liable for damages.
The Bottom Line for Businesses
Photographers and filmmakers need to be more careful about including street art in their work if they do not want to run afoul of potential lawsuits, and the companies that purchase their photos and videos should use more caution as well.
It is also important to note that you must secure permission if sharing copyrighted work on social media. Many companies – including apparently GM – have a mistaken belief that copyright law is somehow less enforceable on sites like Facebook, Twitter, Pinterest, and Instagram.
All social media sites have different rules in place to protect their users’ rights. If you are uncertain about the legal implications of sharing particular content, read the platform’s Terms of Service and consult with an intellectual property attorney. You can reach the Marks Gray IP team at 904-807-2180.Share