From The Detroit News:
Mercedes-Benz USA has filed lawsuits against four artists, seeking a federal judge’s ruling that its use of their outdoor Detroit art in Instagram posts in 2018 did not infringe on their copyrights.
In January 2018, the company posted to Instagram photos of the Mercedes G 500. The photos were shot in Detroit, three of them in Eastern Market, which had been beautified in recent years with more than 100 murals as part of its Murals in the Market program.
The lawsuits, filed Friday, claim that a year after the Instagram post, artists Daniel Bombardier, James “Dabls” Lewis, and Jeff Soto and Maxx Gramajo threatened copyright infringement lawsuits against the company.
Jeff Gluck, attorney for the four artists, said Monday in a statement that “if courts were to adopt Mercedes’ argument, it could destroy artists’ rights for thousands of important and beautiful public works of art,” because companies “would be free to use and exploit murals to sell their products, without needing to compensate the artists or even ask their permission.”
Mercedes deleted the post from Instagram, the suit says, “as a courtesy.”
“Nonetheless,” the lawsuit against Lewis reads, “Defendant’s attorney continued making threats against (Mercedes), claiming that (he) desires to ‘expose'” the company, and would use the discovery process to unearth information other people could use to sue Mercedes, and “tell a jury that (Mercedes) made $80 million selling the G series truck, in an effort to wipe out (its) revenue from sales of the G series.”
. . . .
Eastern Market was one of four sites where Mercedes got still photography and B-roll permits to shoot action shots of its vehicle; the others were Belle Isle, the Motown Museum and the Russell Industrial Center, according to the lawsuit.
. . . .
Gluck went on to say that “Mercedes’ actions could intimidate artists into not wanting to make any artwork outdoors for fear that companies will use their work without permission, and we must not let that happen.”
And officials with Murals in the Market say the copyright to the murals is owned “100%” by their creators.
“We stand firm that the copyright of the artwork always belongs to the artist, unless the artist decides otherwise,” Roula David, executive festival director for the Murals in the Market program, said in a statement.
Link to the rest at The Detroit News, which includes a copy of one of the photos taken by Mercedes.
PG is of two minds about public art and the ownership of copyrights on art created on the exterior of buildings.
On the one hand, he believes creators should be compensated for the reproduction of their copyright-protected work.
On the other hand, when the art is visible to the general public, as in a public sidewalk and/or public street, he thinks third parties should be able to take photos or make videos of the street that include the art as part of the urban scene. (Full disclosure – PG is an amateur photographer. Perhaps “very amateur” would be a better description.)
By way of illustration, here is a photo of a barn on the Gifford Homestead, now part of Capitol Reef National Park near Fruita, Utah. (click on the photo for a larger version via Wikimedia Commons).
As you can see, the barn and road and red rocks make for an attractive image. The barn, built in about 1908, is inside the boundaries of the national park, so no modifications of the structure are likely to be permitted by the National Park Service.
However, as a hypothetical, let’s assume the barn is on private land with the boundary of the national park just beyond the curve in the road.
Let us further assume that, with the consent of the owner of the barn, a street artist of great fame paints a work of art and is the owner of the art.
By painting the barn, is it reasonable for the artist to claim that any photo of this scene violates the artist’s copyright? If Mercedes takes a photo of this scene with one of its vehicles on the highway, should the company be obligated to compensate the artist for her/his work? How about if PG takes a vacation photo of this location?
“On the other hand, when the art is visible to the general public, as in a public sidewalk and/or public street, he thinks third parties should be able to take photos or make videos of the street that include the art as part of the urban scene.”
Or hey, maybe the artists think the picture takers need to give them credit? If so, ‘everything’ in the shot needs credits.
Street last paved by X, manhole cover made by Y, wall owned by Z, dented trashcan and bus stop owned by the city of 0, crap excuse for bad tag art by whatever that symbol supposed to be, murals by ABC&D …
Nice attempt at a reductio, but in fact pavement, manhole covers, walls, trash cans and bus stops are explicitly not protected by copyright and never have been.
Nor was tagged walls, but that has changed.
So, do they want credit or to get paid – and if paid who do you pay? Them or their agents (or those claiming to be their agents? 😉 )
As I said elsewhere, if the ‘artists’ win it will be a loss for all artist as there won’t be any more publicity of their art other than what they themselves pay for.
Sorta like that ‘no linking without paying’ thing in the EU. The other times it was tried Google simply stopped indexing them and viewership dropped like a rock. This will be the same for any ‘not owned by the ad company’ art.
To protect themselves – and to save money – art in ads will become one-off and bought by the ad company with them owning the copyright. New art/places won’t become famous because no one will ever see them.
I think the litmus test should be, “Are you planning on suing everyone? Or just the multi-billion dollar corporations?”
I’ll hypothesize that if the car in question was placed in front of the mural such that the mural was most of the background and prominently visible, the artist has a case. If, on the other hand, the mural was just part of the landscape and not used as the primary backdrop, less so.
Wouldn’t it be nice if common sense were the deciding factor in cases like these?
Personally, I took a Google look at some of the pictures that I could find and I don’t actually think this ought to be a win for the artists. I’m actually surprised to say that. I really thought I’d find something much more commercialized and egregious. It really did just look like city background to me.
However, famous privately owned locations/buildings have to be cleared when used in commercial photographs, right?, so this would probably be more like that, to my mind, so yeah, not available for just any old use by commercial enterprises like Mercedes.
So it’s a toss-up. I guess I’ll let the judge decide. 🙂
Too bad ‘common sense’ depends on whom you’re asking.
“However, famous privately owned locations/buildings have to be cleared when used in commercial photographs, right?”
So, were these murals on that ‘famous privately owned locations/buildings’ list somewhere? Or just under resent local color that will be painted over next year for something new?
This should be interesting. If Mercedes-Benz wins then some people making ‘public art’ will think they were wronged, whereas if the artists win there will be no shots of ‘public art’ for fear of lawsuits from artists or those claiming to represent them. (I’m reminded of a small law office that was suing music sharers – that didn’t have the rights to the songs they were suing for.)
I thought (being a clueless non-legal type) that amateurs were safe in this situation, but for commercial use one had to obtain permission. I’m puzzled that the law is so vague. Or is it that deep-pocket companies think they can do anything they want?
They’re just training advertisers to stop displaying their art for free.
How many people who will never visit Detroit or that area of it saw an ad on Instagram with that art in it?
Perhaps I’m wrong and those painters of murals don’t want anyone but those in the area to admire their art. Maybe they need to hide it where no one can ‘steal’ it – or use paints that a camera won’t pick up right.
I can see advertisers soon offering back-lot shots where something ‘like’ the murals has been splashed up – but anyone looking at the shot and the real murals will know/be able to prove that they aren’t the same ones.