Public street art has quickly become a trendy and an ubiquitous scene in many cities. Social media has increased the demand and consumer appetite for the perfect “photo-worthy” scene. Photos with street art in the background garner likes and shares in the cyberworld. Since street art is open to the public, it is difficult to protect by its very nature. In recent years, street artists have been asserting copyright claims to protect their work and control the monetization of their art.
Advertisers should be careful about including murals and other street art in their marketing. Mural artists have sued companies for copyright infringement, alleging the exploitation of the artistic works without a license.
According to the Copyright Act, copyright protection exists if the work is original and has been affixed in a permanent way. The copyright owner has the sole right to display, commercialize or reproduce the work as they see fit. The Copyright Act, though, does not specifically define which types of artwork are protected from infringement. There is on-going legal controversy over the legal status of street art and the artists’ rights in their artistic works.
Recently, Mercedes Benz was accused of infringement for depicting mural art in its advertisements. The issue is playing out in a legal case over murals painted on a Detroit landmark, Eastern Market. Mercedes posted images of its latest “G-wagon” on the street in front of the murals. One of the artists claimed that using his mural symbolizing Africans during colonization defames the art’s message when used by Mercedes to promote its luxury SUVs.
Mercedes felt the complaint was a “shakedown” to extort money from the auto giant. In response, Mercedes went on the offensive and sued the artists, arguing that mural artwork is part of the architecture and performs the function of promoting tourism, economic development and safety in the area. Copyright law does not protect functional works and as such, Mercedes argues, copyright law doesn’t protect the building murals. A year or so prior, another artist sued General Motors for a mural used in a Cadillac ad. In that case, the judge disagreed with General Motors that the mural artwork added to functionality of the building. That setback motivated General Motors to settle with the artist outside of court.
Mercedes Benz is making a similar argument that the art is now a part of the architecture and landscape and not a separate work of art. The murals, they argue, are now part of the façade of the building of which photos may be taken, without violating the artists’ rights. Mercedes Benz also argues the images as used in their marketing materials are transformative, focusing on the cars and not the street art. Furthermore, Mercedes argues the market for the murals was not harmed by their ads.
It will be interesting to see how the courts will balance the interests of the artists and the advertiser and how this will affect the art community’s ability to earn a better living from their work. Will the court decide based on how the artwork is displayed? As mural art becomes a widely accepted and sought out form of art, what protection is available to artists?
Ad agencies and their clients should first receive permission from mural artists to use their artwork in ads. Compensating artists for their work in an ad would ultimately make more financial sense than taking a risk in the courts.
Tracy Jong is a patent and trademark attorney at Tracy Jong Law Firm. Tracy focuses her practice on client counseling related to patent and trademark prosecution for a range of clients including small startup companies, restaurants and bars, craft beverage companies and product manufacturers. Tracy received her J.D. from the Touro College Jacob D. Fuchsberg Law Center and her undergraduate degree from University of Buffalo in Legal Studies and Economic Geography. She has furthered her studies in chemistry with post graduate work at Brockport College and University of Illinois at Urbana-Champaign. She is registered before the United States Patent and Trademark Office, New York Bar and Western and Southern Federal District Courts of New York. He may be contacted at TJong@TracyJongLawFirm.com.