Who Owns Graffiti?

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From ArtNet:

The Swiss street artist Adrian Falkner, also known as Smash 137, will have his day in court with General Motors. A federal judge in Los Angeles has rejected GM’s attempt to dismiss the artist’s claim that the automaker infringed on his copyright when it included a photo of one of his murals in its 2016 Cadillac ad campaign.

Falkner’s attorney, Jeff Gluck, told the Detroit Free Press that the move was “a massive victory for artists’ rights.” A ruling in the artist’s favor could set a precedent for future lawsuits in connection with the unauthorized reproduction of graffiti art.

A photo featuring Falkner’s 2014 mural on a Detroit building facade was promoted on Facebook, Instagram, and Twitter in GM’s “The Art of the Drive” social media campaign. Even though it was not part of GM’s larger advertising strategy for the Cadillac XT5, Falkner argued in his complaint that the image was likely seen by millions of people and “damages his reputation, especially because he has carefully and selectively approached any association with corporate culture and mass-market consumerism.”

. . . .

GM had argued that its use of Falkner’s mural was legal because copyright law allows photographic depictions of architectural works. “This right to photograph an architectural work extends to those portions of the work containing pictorial, graphic, or sculptural elements,” the company argued in a July legal filing. “Because [Falkner’s] mural is painted onto an architectural work, it falls squarely within the ‘pictorial representation’ exemption, and his copyright infringement claim should be dismissed.”

The judge looked at a similar case in which artist Andrew Leicester sued Warner Brothers for filming the courtyard of a building that housed his sculptural work, which appeared in Batman Forever. That case was decided in favor of Warner Brothers because Leicester’s work was designed in tandem with the rest of the structure, and were thus considered part of the architectural design.

. . . .

“Graffiti artists often aggregate their work on public and private property,” says Sam P. Israel, an attorney who specializes in intellectual property law but is not involved in this case. “If GM loses the trial and the plaintiff’s graffiti is deemed to have a copyrightable identity separate from the architectural configuration, it boggles the mind to think of the licensing costs for depicting architecture that’s been enhanced by multiple artists.”

Link to the rest at ArtNet

If the preliminary holding in this case holds, PG wonders how difficult it might become to photograph a city street or any group of buildings in an area with a lot of graffiti and publish that photograph or post it online.

9 thoughts on “Who Owns Graffiti?”

  1. Isn’t this the same issue as the tattoos?

    If you’re paid to put your “art” on someone else’s property it is work for hire.
    If you’re not paid but you do it anyway you’re giving it away.
    If you don’t ask for permission it is vandalism.

    Shouldn’t be that hard under property rights law.
    The problem here is the old bugaboo of “moral rights”.

    At some point a court is going to have to step up and explicitly disallow “moral rights” as incompatible with tbe US constitution.

    • Felix, I applaud your reasoning. I agree with you.

      By the American and common law concepts of property and rights, the decision is easy. It is only complicated if you think like a Frenchman.

      We have none but evidence for the prosecution and yet we have rendered the verdict. To my mind, this is irregular. It is un-English. It is un-American; it is French. –Mark Twain

      • Well, in this case, the moral rights school of thought is a french invention. From the same folks who consider internet access a human right.

        Although in this case I suspect the judge is also basing his ruling on the deep pockets theory.

        It is California, after all.
        Moonbeam territory.

  2. It’s vandalism. If the so-called ‘artist’ claims it then arrest and fine them – there’s no need to promote criminal behavior …

    If it was ‘paid for’ art, then it’s simply commissioned art and now belongs to the property owner.

    Next thing you know they’ll be claiming they blood splatter from a drive-by shooting is ‘art’ – you have to hit them at just the right angle and all …

  3. As Felix and Anonymous have both already stated, grafitti is either a work for hire, community donation, or vandalism.

    As far as I’m concerned the moment Mr Falkner came forward with his suit he should have been charged a fine for vandalism and been given a bill for either the removal of his work or compensation to the owners of the building for the damage he caused to their property.

  4. The way this layman sees it, a mural is a mural, regardless of the choice of pigment used to construct it, and vandalism is vandalism, regardless of how much an uninvolved third party may appreciate it.

    If I pay someone, or just grant permission to someone, to paint a mural on the side of my house in Krylon, it’s art. If someone sneaks up to the house in the dead of night and cements one inch glass tiles all over my front porch, in a credible depiction of the Last Supper, it’s vandalism until I accept it, then it’s a gift of art. I would hope that, having not given permission to the “artist” to “install” the piece, I as the landowner would retain all rights to my house, including the right to photograph it, including for profit.

    However.

    It was a commissioned or permitted art piece that happened to use spray paint. The property controller was okay with it being put up there. There is presumably some agreement between the property controller and the artist on just how much of the work remained under the control of the artist. (I would hope that the default is for the property owner to get all the rights, including reproduction rights, barring a more specific agreement.)
    GM should have sought permission to use the art. Presumably, they thought that specific permission came with the permission to use the whole of the parking structure.

    To me, the question is now whether or not a piece of art, in the possession of one entity, is still owned, at least for purposes of reproduction, by another, presumably originating, entity. Whether or not it can be legally separated from the environment it is made a part of, when depicting that wider environment.

    • That quandary is precisely the mess that injecting “moral rights” into american law creates.

      Under property rights law the artist has no standing to sue. It’s not his wall. Only the owner of the property and only if the image is trademarked like the Rock Hall of Fame. GM’s position is more realistic.

      The judge sounds like he’s auditioning for the Nutty Ninth.

      • They key point in GM’s defense is that the Ad campaign was not focusing on the so-called mural but on the car in the street. The appearance of the image is incidental.

        Fair use applies: the image is in a public venue, not a private courtyard, and it is there for everybody and anybody to see whether they intend to or not.

        As PG said the ruling opens a can of worms for anybody photographing urban landscapes and it serves no public good. GM should fight it all the way.

  5. The vandal has no “moral rights” to profit from committing crimes.

    You’d think that’d be easy enough for any judge.

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