In an interesting copyright dispute, Mercedes is asking a judge to rule in its favor after four artists sued the car giant for including their graffiti murals in Instagram posts of the latest Mercedes SUV.
According to The Detroit News, a lawsuit filed on March 29th names Daniel Bombardier, James “Dabls” Lewis, Jeff Soto, and Maxx Gramajo. Back in January of last year, the official US Instagram account of Mercedes posted a number of photos of their new model. Taken in Detroit’s Eastern Market, also pictured were various murals, featuring the works of the aforementioned artists.
From what we know, Mercedes followed the correct procedure in obtaining the required permits to conduct a commercial photoshoot in the area. The issue stems from not having requested permission from the artists themselves.
Bombarbier, Lewis, Soto, and Gramajo are now accusing Mercedes of copyright infringement. Interestingly, Mercedes removed the images in response, but the complainants are seeking financial compensation.
So says the lawsuit filed by Mercedes:
Nonetheless, Defendant’s attorney continued making threats against MBUSA [Mercedes-Benz USA], claiming that Defendant desires to ‘expose’ MBUSA, use formal discovery to learn information other people can use to sue MBUSA, and tell a jury that MBUSA made $80 million selling the G series truck in an effort to wipe out MBUSA’s revenue from sales of the G Series. MBUSA did not infringe Defendant’s alleged copyright and therefore refused to credit this aggressive shakedown effort.
Naturally, Mercedes is claiming fair use on the murals, stating they’re exempt from copyright protection under the Architectural WorksCopyright Protection Act as they’re “permanent.” They also attempt to rubbish the argument by stating the murals are blurred, pictured from an angle, not seen in their entirety, and are not the central focus.
Artist Bombardier said it is “totally unacceptable” for Mercedes to use his work as part of a campaign to advertise a car that costs $200,000 without compensating him financially.
It’s worth noting the Detroit officials that commissioned the murals are on side with the artists. They draw particular attention to previous Mercedes adverts, in which the company licensed the artists’ works.
Who’s in the right here?
Mercedes is right. Murals are in public view, their presence is accidental and not relevant. Next maybe buildings owners will sue for using the "art work facade" in a commercial. Ridiculous, its the classic dig for gold.
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they obtained a permit from the city to shoot at the location, therefore the presence of the works in the background is neither "accidental" nor "irrelevant."
I'm not a lawyer. But, it seems to me that that art work is probably why Mercedes chose to shoot there. But, I don't think the artist(s) have a claim seeing that that location is public.
Do you think that people would make a decision to buy a $200,000 mall cruiser based on a mural?
Do you think people would make a decision to buy anything because Matthew McConaughey or Samuel L. Jackson are in the ad? No? Maybe? But, someone thinks so and that's why they were chosen for their respective ad campaigns. The same applies here. That location was chosen by Mercedes because they thought highly enough of it and chose to leverage it. Now, whether the artist(s) can claim financial redress, I have no way of knowing.
I beg to differ... If the presence of the artwork wasn't relevant, they could have shot further down the block, and the result would the the same. They chose to shoot exactly at that spot.
The winner here is Mike's Coney Island Restaurant...free advertising! I'll bet he supports Mercedes Benz. :-)
I've been to Mike's. It was OK but not as good as Lafayette downtown...
I do agree that artists should be compensated. With that said, the artists were commissioned and paid for their initial creation of the murals. The city should have written in the commissioning documentation about future royalties for use in commercial projects. That way, when Mercedes correctly obtained commercial permits for shooting in that area of Detroit, a surcharge could be added to the permit. It would have given Mercedes the option to use that location or another. On a side note, when in Paris, you are forbidden from posting any night images you capture of the Eiffel Tower. The configuration of the lights is copyrighted by an artist.
...and here in California the owners of the Pebble Beach near Monterey try to forbid images of a tree, the "lone cypress" if my memory serves me. Not sure how that ended.
What about movies showing cities and pieces of art? Should Calder or Kandinsky estate receive payments from makers of the Blues Brothers? How about Ferris Buhler Day Off, scenes in the museum? Should we decipher every location and scene to identify the artwork, which happen to showed up in the scene?
You can see my more lengthy reply below, but yes, whoever owns the rights to work shown in movies do get compensated, even if it's the Calder or Picasso sculptures outside.
Duly noted, more complicated than I assumed it is indeed. Apparently we are long way from the simpler world: Get paid for the work, done. I am sure that any company applying for a filming permit pays a fee to the municipality or to the owner of the premises (garden, museum, library). If such cases will become public, we should start to... avoid any places with artwork in product shoots at all costs. I would have! And how would that benefit "the artist"?
Showing a product and a logo is a totally different matter, we should not draw any analogy here. So is the "tree likeness" of Pebble Beach. Their action brings no benefit to them or to anyone else. This is a rich man's golf course. As far I recall people even started to look for a similar cypress and photograph it, and oh my god, how astonishing: one can find hundreds of trees looking alike.
I can't speak to the Pebble Beach situation, but I agree that trademarks are different than copyright.
Re how it benefits artists: I believe the reality is that artists bring an appreciated beauty to our world and people want to celebrate that and be associated with it. If someone wants to use it in an ad or movie, then pay for it. If you can't afford to compensate everyone, then you can't afford it, and indeed, you may have to shoot elsewhere.
It appears that Pebble Beach Co. has a registered trademark on a “drawing likeness” of the tree that it uses to brand its property location.
Has this been litigated at all? Or something similar in that a living natural object is a registered trademark? I find it strange yet fascinating if we're allowing trademarks registrations for naturally occurring objects/spaces.
To obtain a US registered trademark on a living object, it would have to be depicted as a photograph, illustration, or another art form—you could then use that art-styled mark on various media to establish branding. And that’s what Pebble Beach Company seems to have done.
> Has this been litigated at all?
I’m not aware of any litigation; maybe some were settled quietly and confidentially???
I believe Pebble Beach continues to stop any commercial use of the Lone Cypress “living tree” as photographs + paintings being sold in galleries or licensed for commercial stock.
The Lone Cypress tree is on Pebble Beach property. As I understand, to visit this tree you have to pay an entrance fee and that permits you to photograph it for personal use only (no selling of artworks).
Many attorneys believe that Pebble Beach Company has no legal right to stop people from exploiting the living tree as artworks, commercial or otherwise per the First Amendment.
A brave artist with $500K or more in the bank could challenge Pebble Beach Company’s “trademark.” Without any challenges, Pebble Beach Company will continue to control its living tree branding.
Anthony: This link and its dated story may help: http://www.montereycountyweekly.com/news/local_news/pebble-beach-co-tell...
Thanks for the link and all the interesting opinions in this apparently quite complicated matter.
On a personal note: I was driving my Mercedes between Monterey, Pacific Grove and Carmel for decades and I never ever opted to pay for a ride in some "17 miles drive." Its a road for Pete's sake, same trees, same asphalt, I will rather get a lunch and an espresso. But that's me, and the rich people of Pebble Beach are in fact surely happy that many people will opt not to enter their drive: Less traffic, more space for their Maybachs, Bentleys, Bugatis, S-class Mercedes and Rolls-Royces.
In this case of murals in Detroit I think that Mercedese's take was that they did not care about the artwork. Selection of images was random to them: They rode the streets, kept shooting and picked some of the images where they though the homes and cars looked best. The artists said "you picked these because of our artwork," we get that, and lets see how this will play out.
I agree: Mercedes chose those specific photographs because the murals presented a nice backdrop that complemented their new line of pricey vehicles--I think it might be that simple.
No matter what the reasons may have been, Mercedes still has the legal duty to make sure that everything included in their advertising campaign is fully released.
I’m also thinking that, perhaps, a Mercedes’ intern (or an in-house freelancer) posted those images without first clearing it with Mercedes’ legal team. With the intern gone, legal only found out after the muralists started threatening lawsuits.
I’m expecting this litigation to settle confidentially and out of court. So, we may never know how much money the muralists received, less their attorney fees.
For a similar hypothetical: if you are a sculptor who is commissioned to create a piece for a public space which is later, either incidentally or deliberately, included in an advertising campaign could you reasonably expect compensation despite already being paid for your work?
And would this only apply for companies or could an individual doing non-commercial work find themselves on the hook if they didn't get permission or give credit?
I rarely find myself on the side of corporate entities because they are usually dicks who trample copyright when it pleases them but this case seems flimsy & could plausibly set bad precedents for everyone.
Guy Incognito--"For a similar hypothetical: if you are a sculptor who is commissioned to create a piece for a public space which is later, either incidentally or deliberately, included in an advertising campaign could you reasonably expect compensation despite already being paid for your work?"
LOL!
In the US, yes--and the copyright of sculptors in that specific scenario has been upheld multiple times by the copyright court.
In fact, if you make the bad mistake of including a sculpture that had been commissioned by the US federal government (such as at the Vietnam Memorial), the federal government will take you to court in behalf of the sculptor.
The sarcastic "LOL!" was unnecessary, I was asking the question in earnest. Not all of us live in the U.S. or have an encyclopedic knowledge of this type of law.
The benefiting party are mostly the law firms. Gold mine to them. Such stance will cause that we will try to avoid to be in proximity of any places with artwork. This one goes on the agency who did the shoot for Mercedes.
Murals are especially a tricky aspect: Countless people see murals as not very pleasing, and graffiti as a vandalism, a nuisance. There was a case in Germany with a defaced facade, which than "the artist" defended in court as an artwork, despite the fact that he did not had any permit to apply it. And so the indignant building owner was at first forced to accept the zig-zags as "an art" on their property, and even sit on their legal fees. A while later 'someone' over-sprayed "the art" in the darkness of night, and that was the end of it. Good job.
Here in the Silicon Valley I see constantly "artwork" painted on walls along Caltrain tracks (access only by trespassing), and on numerous highway overpass bridges: How in heaven they even get access there?? Caltrain persistently over-spays the murals/graffiti. So does Caltrans, but its really very expensive, our tax dollars at work.
Thomas H--these were murals commissioned by the city.
Actually they don't seem to be - feel free to look at one of the complaints (I assume they're identical) against the artists linked to the Detroit News article. The murals were made in connection with a non-profit group called Murals in the Market. Mercedes does not assert that the murals are owned by the city nor do they assert that the works are public domain pieces.
Mercedes makes several assertions, including that they "transformed the meaning, message, and aesthetic of the mural". This is incredible since all they did was put a car in front of it and blurred it a bit. If that's all it takes to substantially transform a work... oi.
Okay, "made in connection with a non-profit group called Murals in the Market" still means they are not unwanted or illegal graffiti.
Agreed. Just want to make clear that it's unlikely the city commissioned the works, which would have made them the owners of the pieces as opposed to the artists.
Ok, this seems to be surely a complicated matter, around which the diversity of opinions clash. Lets see how it will play out. Final word belong to the courts, and that judgement we shall accept. In any case, thanks for the insights to all here! This gave me a reason to think about aspects to which I was oblivious to.
Well.. I do not know how the law applies locally, or what type of agreement was made between artist and the city regarding royalties for commercial use. However, it can almost be seen from the moon, should Aliens pay for it?
only if said aliens took photos and used them for profit.
If the artists win, we could end in a situation where it would be near impossible to photograph in a public space, if anything copyrightable is included in the photo. The next thing would be Mercedes-Benz suing commercial photographers that deliberately or accidentally include one of their cars in a picture (think beautiful model leaning on the bonnet (hood for the people on the other side of the pond)), as I am sure the specific expression of the car model would be copyrightable.
Mr T--actually, yes, Mercedes would sue the pants (and I do mean underpants) off an advertiser that depicted deliberately (or "too incidentally") included a beautiful model leaning on the bonnet of a Mercedes. That will happen today. It's called "trading on their mark."
exactly. it's done all the time from the other direction. if you've ever wondered why logos are often blurred out on clothing, vehicles, etc on "reality TV" shows or even in monetized youtube videos where a consumer product that's being used as a primary focus but isn't being reviewed, or self-censorship of music and video clips to under X seconds (i think it's 5?). that's all due to preventing the corporate copyright or trademark holder from suing, and winning, all revenues related to it plus legal fees.
I think we'd be hard pressed to find a single copyright lawyer in the comments section, much less one that knows the facts of the case. I don't know why we're even trying to ascertain who's in the right legally.
Ask and you shall receive! I've done some copyright work and in fact discussed this specific matter on the Facebooks a while back, but I'll give a summary here:
Copyright law allows architectural works to be photographed/filmed without the need of permission insofar as the work is "a part of" the building/structure. What that means generally is that it has to be practically necessary to the structural integrity of the building - think a decorative column or ornate sculptures formed into a wall/pillar - without the column/wall/pillar, the building will fall.
However, if something affixed to a building is not "a part of" the building as described above, it isn't exempted from the need of permission. Murals that are merely painted on the side of building, it can be argued, are not structurally integral to the buildings it's painted on.
So to recap - if something is removed from a building and the building would be in peril of falling, it's exempt from need permission to feature in commercial photography. If it's not integral to keeping the building up, it's not "a part of" the building, thus not exempt.
Commercial photography v. non-commercial: If you're wandering doing street photography and happen to or even intentionally capture a mural, you're at less risk of infringement since you're likely not making substantial money off the photo (fine art prints may fall under this). However, if you're advertising a product, then there's a sense of association/promotion of anything included in the advertisement, including artwork, and are in more risk of infringement. Think about fashion ads - they are careful not to include brands or even unique and easily identifiable patterns/styles of other companies. Why? Because other brands likely do not want to associated with each other unless agreed upon.
To answer specifically to the idea that Mercedes would be upset if you used their car in a photo with a model - they probably would sue, especially if it's an advertisement for something they definitely do not want to be associated with. Again, this is why when you watch non-automotive advertising that have cars in it, the logos are taken off the cars.
To answer another specific comment: yes, whoever owns the rights to the Calder and Picasso in Chicago got paid for their appearance in the Blues Brothers.
I do photography as well, including automotive and street stuff, and while I am somewhat understanding of photographers not agreeing with the artists here, some photographers' anger over this kind of confuses me. Artwork is supposed to displayed for others to enjoy, regardless of whether it's outside or inside a gallery. I see these artists doing a bold and generous thing by making their work so easily accessible for the public as opposed to hiding it in a gallery or museum. While they may not request payment to view it or even take personal photos of it, surely one can understand wanting some form of compensation if someone else is making money off of it.
A smaller concern that others have: I think it's absolutely reasonable to think Mercedes and the ad agency chose this area of the city specifically due to the great murals adorning the buildings. Some may say "well, they could have used any mural/building" - then they should have, but didn't, so we're here now.
I recommend looking up Faulkner v. GM, which is quite similar to this case. It has not been fully litigated yet, but GM lost on the issue of the mural being a part of the building in a summary judgment motion.
DEFINITELY don't take this as legal advice, but just an analysis by an art lover who happens to do law things as a job.
A California court denied GM’s defense that the mural was exempt from protection under the Architectural Works Copyright Protection Act. The matter between Faulkner v. GM settled.
Thanks for the conclusion!
The sticky point is the use of the murals for advertising, they were chosen to show how gritty the G wagon is...I know stop laughing but that was the purpose, It was not an incidental use.
sounds more like the city of detroit is failing to cough up royalties to the artists obtained via the city permitting process. the city commissioned these public works and thus the buck stops there.
if these were private works on private buildings or otherwise privately commissioned, it would be a different story.
the artists should be suing the city for their portion of the royalties obtained through the permitting process. of course, this depends on who actually owns the copyright on the works: the artists or the city?
at least that's how the custodial chain seems to ascend from where i sit with my feeble mind. any copyright lawyer is welcome to correct me where i'm wrong, however there's little to go on since this case hasn't even gone to discovery, so the documents related to the commissioning contract, copyright, royalty agreements or even MBUSA's permit filed with the city aren't yet public (though most are likely public record if you're willing to dig for it).
You're right - we'd have to see the contracts. I don't know too much about these types of licenses, but I do know in music recording contracts and other types of contracts that include copyrighted material, often times someone guarantees that they have the right to license rights to all copyrighted work involved. You'd be surprised, though.
City permitting fees don’t grant the “purchaser of the permits” with any copyrights, trademarks, and other IP. Those have to be cleared and negotiated separately between the purchasers and the rights holders.
Great to know - thanks!
There has to be a reasonable standard where background artwork is "transformative" and therefore not requiring permission and "essential" where it would. For example-in image #1 does Mike's Coney get the same legal protection/income as the mural? In image #2- Do the other 4-6 logos and artwork get have the same merit to sue? Likewise- should GM sue every commercial use of the Detroit skyline that includes the Ren Cen?
Even as an artist-it is hard not to see this as greedy. There must be hundreds of other commercial and non-commercial uses of these murals as backgrounds in social media, and I don't think they sued before. Morally, I don't think that public artists should get blanket rights to their artwork in every situation.
Professionally- It is also sloppy by Mercedes/the production team to not get location releases including the art-at least for image #3 where the artwork is not background.
Short answer - yes, any trademarks and copyrighted works in an advertisement should be licensed for use, including Mike's Coney Island. Of course, it's the responsibility of the rights owner to decide whether to exercise their rights. Lawyers can be expensive, and the seemingly daunting challenge of taking on a big luxury automotive company on can be a deterrent. See my comment above about buildings like the Ren Cen (though the logos on top would not be covered by the exemption).
Social media is a crazy space - you have a lot of people who don't understand the complexities of copyright and trademark law, so yes, if you're looking at a lot of "influencer" posts through the lens of a IP lawyer, your head would explode. And to be clear, this is not a blanket right for every situation per se - this specific matter concerns commercial use, not personal use. Limits of personal use is likely not at risk in this case.
Professionally - totally sloppy, which is why I don't have much sympathy for Mercedes. I don't expect the artists to have a team of lawyers telling them what to do all the time, but Mercedes should. They screwed up, and even worse their attorneys had the guts to preemptively sue the artists rather than just paying a license fee, which would have been much cheaper.
Frankly, I had never heard of these artists before the campaign. So stupid this issue.
I disagree with the concept that no publicity is bad publicity. Artists would like to be acknowledged and compensated for their work. Mercedes did neither of these things until the artists raised it, so but for this litigation, you may not have ever heard their names anyway after seeing the ads. I believe that's the point - people should not be able to benefit from other's work without compensation and/or attribution.
I think they lost their "artist" card after trying to sue when their public mural is caught in a commercial..
Can you elaborate? Is it "un-artist-like" to sue to protect their work?
If it's about the work being a public mural, then as an artist I would disagree that just because you place a work outside to provide an unobstructed view to the public you give up all rights to it, especially when it comes to others making money off of it. For example, I think it's entirely reasonable that people would take pictures of it, but I would find offensive if someone took a photo of it as the primary subject and began selling prints or merchandise of it without compensation. Legally, that would be making a copy or at least a derivative work, which would be a violation of copyright law without permission.
... greedy artists I guess... its a public mural... and a crappy one at that.. get a grip... and maybe a real job.,