Judge Rejects GM’s Attempt to Dismiss Graffiti Case

GraffitiA federal judge in Los Angeles has rejected an attempt by GM to dismiss a case brought against it by a graffiti artist.

The Swiss artist, Adrian Falkner, who goes by the name “SMASH 137,” sued after GM used a photo including one of his murals in an ad for a 2016 Cadillac.

The mural was painted on a parking garage in Detroit.

Copyright Infringement

Smash sued GM for $150,000 for willful copyright infringement after the car company used the image on its Facebook, Twitter and Instagram accounts without his knowledge or consent. 

He argued that

exploitation of plaintiff's work damages his reputation, especially because he has carefully and selectively approached any association with corporate culture and mass-market consumerism.

GM argued that the mural fell within the “pictorial representation” exception to copyright law that allows photos of architectural works.

Architectural Works

Under this exception,

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Thus, as the court noted, “one may freely take a photograph of an architectural work, including a “building,” without infringing a copyright in the work.”

(Blueprints and building designs, among other works of authorship, are otherwise protected under copyright law.)

In a previous similar case, an artist designed a Batman sculpture that was housed in the courtyard of a building. In that case, the sculpture was considered part of the building design and the artist lost.

In this case, however, as the Hollywood Reporter noted, the graffiti was not “part of the functional and architectural vocabulary of the building,” as in the Batman case.

Aerosol Art

As the New York Times reported,

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.

As the Times notes,

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.

As I previously wrote, the “moral” rights of graffiti artists can also be protected under the Visual Artists Rights Act (VARA), which is part of US copyright law.

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