G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?

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From The New York Times:

There was a time when graffiti was perceived to be a scourge, a public nuisance made by outlaws who sprayed their work on subway cars then slipped into the shadows, occasionally pursued by the police.

But these days, graffiti is having a renaissance and is used by fashion labels and major corporations in their ad campaigns. Rebranded as “aerosol art,” it has now become what it rarely was before: a marketable commodity.

The law, however, is struggling to catch up with the change in taste and culture, especially when it comes to the issue of when graffiti — an ephemeral form of art — deserves the safeguards of a copyright. This month a federal judge in California will entertain exactly that question as he hears oral arguments in a copyright lawsuit that could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists who create it.

The lawsuit, Falkner v. General Motors Company, was filed in January by Adrian Falkner, a Swiss graffiti artist better known as Smash 137, who was commissioned four years ago by the businessman Dan Gilbert to paint a mural on the outdoor elevator shed of a 10-story parking garage he owns in Detroit. The garage, called the Z because of its zigzag shape, was designed both as a place to park your car and as a kind of public art gallery. Two dozen other graffiti artists adorned its walls with their creations, though Mr. Falkner’s piece had a privileged position on the top floor of the structure, surrounded by views of the city’s downtown skyline.

. . . .

For just that reason, court papers say, a freelance photographer working with General Motors used the mural in 2016 as the backdrop for a series of photos for a Cadillac ad campaign called “Art of the Drive.” G.M. posted the photos on its Facebook, Twitter and Instagram accounts without Mr. Falkner’s knowledge or consent. So he sued the company in Federal District Court in Los Angeles, where the photographer is based, claiming that G.M. had infringed on his mural’s copyright.

. . . .

In theory, federal copyright law grants broad safeguards to graffiti; any original creative work that is “fixed in a tangible medium of expression” is automatically protected by a copyright. But not all graffiti is the same, and the courts have only just started to consider whether legal distinctions can be drawn between commissioned and unauthorized graffiti; or if a few words scribbled in the bathroom of a bar deserve the same protections as the works of established artists like Mr. Falkner, who has shown his pieces in galleries across the United States and Europe.

. . . .

Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of “architectural works” do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was “incorporated into a building.”

. . . .

“If the parking structure is a ‘building,’ then that is the end of the analysis,” G.M.’s lawyers wrote. They added: “Joe Public should not be required to research the history of the building and hire architectural experts before he snaps a photograph.”

Link to the rest at The New York Times

With all the graffiti copyright cases popping up over the last several months, PG says, to be safe, just make your own graffiti and use that.