Mercedes Countersue Graffiti Artists Over Dispute in Using Murals in Their Car Campaign

Mercedes Countersue Graffiti Artists Over Dispute in Using Murals in Their Car Campaign

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?

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Kevin Gilmour's picture

I usually like to side with the 'little guy' when it comes to things like this as the big Corporations usually treat small-time creatives with disdain, but I have to side with Mercedes on this one.

The artists in question were paid to create their artwork by the City of Detroit, therefore they do not own their respective works... the City of Detroit does. Mercedes got all of the correct permits, etc from City of Detroit who own the artwork.

Anthony Nguyen's picture

Can you provide support that the murals were paid for by Detroit and they own them? It's my understanding that they don't.

Mike Ditz's picture

In my experience, permits cover things like where, when, how many people, parking spaces, road closures, special effects, but even in the DMV like FilmLa the backgrounds have not been a question. That's between the production company and the people who have an interest in the mural or background.

If this is like most of the similar things I've seen, a couple interns or new employees from the "social media" group took a G and were told to shoot and post some "local color" including the murals to how the urban grit.

AC KO's picture

Kevin Gilmour wrote, “Mercedes got all of the correct permits, etc from City of Detroit who own the artwork.”

Permits typically grant the permitees to film, photograph, or stage/host an event on city property. A permit will NOT grant the permit-holder to use any creative works protected by copyrights, trademarks nor peoples’ personas (their likeness), and other intellectual property rights for free—all those MUST be cleared, and if not the permit-holder is subject to multiple legal actions.

Kevin Gilmour wrote, “The artists in question were paid to create their artwork by the City of Detroit, therefore they do not own their respective works...”

Kevin, I would bet that your assumption will be wrong—that’s not how US copyright functions.

There’s a legal distinction between purchasing (buying) an artwork, photograph, song, etc. vs. owning its corresponding copyright. See 17 USC 202 (Ownership of copyright as distinct from ownership of material [artwork] object).

Unless the artist is a full-time employee of the city/company (the city/company would then own the artwork), or there’s a contract between the freelance/independent artist and buyer (that states that the buyer owns the artwork’s copyright—aka, a copyright transfer), or the artwork falls within one of the nine work-for-hire categories, the artist will retain the copyright to his/her works.

If I purchased a painting from a local artist, I will own the physical painting that I may display privately in my home; I may also sell it or give it away for free. However, I don’t get any rights to make copies or get the painting’s copyright, which remains solely and exclusively with the artist--that’s US copyright law.

Though the city of Detroit may have commissioned and paid for the mural to be drawn, the artists will own the copyrights to their works. That’s how I’ve understood the facts presented in this particular case.

Mike Schrengohst's picture

Mercedes should offer each artist a vehicle like that was used in the posts. And then be allowed to photograph each artist by their mural with their new Mercedes.

Drew Pluta's picture

Do any of you supporting the artists here understand that the logical conclusion to this will mean an effective ban on all public photography? If this is the way we do things all street photography will contain copyrighted works and will thus be required to get permission from all parties contained in a frame.

I'd like to see the assertion that as muralists they know that the works will be part of a public space and part of the free nature of our society. Just like we can all be photographed in public and have very few rights to restrict use of our human image. How is it we don't hold these situations in similar regard?

Anthony Nguyen's picture

First, the law is currently how it is; street photography (assuming it's non-commercial) has always existed in line with the copyright protection of outside sculptures, murals, and other outside artworks. Personal photography - use that doesn't involve making money - is not affected by these laws or the outcome of this lawsuit. Shoot to your heart's content!

However, if you're looking to use other's copyrighted work in an advertisement or promotion of a product, you're likely running into the issue of needing permission to use that work. Same goes for music and other works, and I believe this makes sense. I disagree that simply because a work of art is outside and not protected from the elements makes it free of copyright protection. That would discourage artists from sharing their works publicly, and we'd be left with just looking at bland buildings and advertisements when outside.

One's privacy is protected the same way art works are in regard to commercial photography, ie. model releases. Again, for street photography, as long as you're not selling your photos commercially (ie. not as fine art), then you're running a risk of infringement of someone's rights.

Steven Russell's picture

So, as an example, the guys that lay asphalt on streets probably think they are artists for how they pour it and create smooth streets. I'm sure electrical workers think they put up light poles and wires in a way that is artistic. The guys that make sidewalks are artists. I could not do any of those things. Should all of those things seen in a photograph or commercial be considered art and request compensation? Anything in the public view, on a street should be considered free. If the lens on the camera was a Canon and the lens maker was an artist,,,,,,.

Mike Ditz's picture

No, I would think that first of all if Edison could make that claim they would've long ago :)

AC KO's picture

Steven Russell wrote, “Do, as an example, the guys that lay asphalt on streets probably think they are artists for how they pour it and create smooth streets. I'm sure electrical workers think they put up light poles and wires in a way that is artistic.”

Steven, the simple distinction is that those city-type jobs do NOT produce creative works of authorship, as defined in the US copyright statute (like photos, paintings, songs, poems, mixed media works, etc.). Those city-jobs produce “functional” things, and functional (creative) works do NOT qualify for copyright (maybe a patent, if the work was new, useful, and non-obvious).

And all those city jobs are typically working for the city--the city would own their creative works, if any were produced during the scope of their employment.

Deleted Account's picture

Aaaaannd.. JaguarUSA have just posted pics on Instagram of the Jag XE in NY. With? Yep ,you guessed it, graffiti backdrops.

Another pissed off can-jockey kicking up a shitstorm in 3,2,1.

Michael Berger's picture

Daimler is right. Protect your art inside a gallery or museum if you're worried about copyright infringement.

Aiham Dib's picture

It is a win win case for the advocate business. In every case there is a lawer winner.

It ia aquestion , can Mercedes sue the artist
For he is making a scandal with a big brand for getting exposure ?

Aiham Dib's picture

If a man painted the walls yello or red.
Would he be able to acclaim a Rothko style painting ? And charge Mercedes?

If Mercedes checked the wall and find on it any scrach or stickers or writings . Which means the work is no longer a Signature .asit developed into.other person work. Can this help Mercedes?

Mercedes dont have to pay . For many reasons together. One of them the fact that this painter did not rent rhe street to show his work. So he cant charg for a theme like passing car in the street as long as his work is ocuppying the perspectuve of visibility this makes of him the guilty not the car.

Anyhows, if Merceses chosed to fall back from this portfolio after the artist aclaim. Then he cant charg nothing. Cuz that is when he laid the deal and Mercedes did not take it. So no deal . You cant punish the company for not accepting ur deal.
Though if i am in their shoe i will not fall back from what i did . Cuz this makes every one huntting for my skin .

Aiham Dib's picture

I wonder if a literal work has to pay every place and somebody mentioned in the novel, if i say i took the underground then walked the x street to meet the girl in the national.library .....

Or if say: i read a novel with loud vouce to a group of people. Can the publisher sue.me ?

alberto cabrera's picture

LOL. This is simple. Below is part of the agreement these mural artists signed with the City of Detroit through the City Wall program that is operated by The Detroit General Services Department.

"The city retains all ownership rights to the mural as an artistic work, including marketing, copyright and exhibition rights. Owner with city approval has the right to market or distribute copies, photographs or other depictions of the mural, except that Owner shall be entitled to include the mural in photographs, films or videotapes of the Building to the extent that the Building is an incidental part of advertising for a business conducted by Owner or a tenant of Owner in the Building."

This is pretty standard for these type of projects. Each city has its version, and the wording may be different, but the legal meaning is the same.

These artists were paid by the city to create public mural/art installations in specific areas of Detroit through their City Wall program.

Sorry, I know you all want to fight the "artist have rights" thing here, but no. They signed their rights away as soon they signed that agreement and accepted the check.

That is why Mercedes is countersuing and has every right too. They pay and obtained all proper permits, and it would be a different story if they have not. Don't you find it interesting that the city or the property owner are not involved. LOL

For the smart butt people here, "Owner" above refers to the owner of the building/property — not the artist. The artist is referred to as "artist" in the agreement.

AC KO's picture

alberto cabrera wrote, “Below is part of the agreement these mural artists signed with the City of Detroit through the City Wall program that is operated by The Detroit General Services Department.”

Are you absolutely sure that the muralists specifically signed the City Wall agreement, relinquishing their IP rights to the city and/or others? Can you provide links to the signed documents that include their names, signature, dates, etc.?

According to The Detroit News, officials with the Murals in the Market state that, “the copyright to the murals is owned "100%" by their creators [muralists].”

"‘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.”

"‘We side with the artists and will help fight against corporations who don't act responsibly or respectfully.’ David added that Mercedes' lawsuit is "particularly offensive, as Mercedes has contacted us in the past to license other works for similar advertisements."

According to one of the defendant muralists, Daniel Bombardier, he "…spent weeks painting it [his mural] and spent thousands of dollars of my own money making it …And now they have filed a lawsuit against me trying to strip away all of my rights. I feel like I am being bullied and intimidated."

Source: https://tinyurl.com/detroit-news-murals

Because the muralists threaten Mercedes with litigation, Mercedes went on the offense and initiated the lawsuits by filing three declaratory judgments (rather than countersuing the muralists, as you wrote). See https://content-static.detroitnews.com/pdf/2019/lewis.pdf

In its declaratory judgment filed against the muralist James Lewis, Mercedes never indicated that Lewis’ mural copyright belong to the city or any other party. If that was the case, it would have aggressively argued that point in its declaratory judgment.

Mercedes’ declaratory judgment is relying on a number of legal arguments, including that the its use of the murals in its commercial media context is Fair Use (it only used part of the mural and/or the background mural was blurry/in motion), its use transformed the aesthetic and meaning of the mural into something different, and the mural is a functional item to increase tourism and economic development in the Eastern Market area (functional things are not eligible for copyright protection).

Statements from Roula David, the executive festival director, and the allegations in Mercedes declaratory judgments, tell me that the muralists retain the copyright to their murals.

alberto cabrera's picture

"Are you absolutely sure that the muralists specifically signed the City Wall agreement, relinquishing their IP rights to the city and/or others? Can you provide links to the signed documents that include their names, signature, dates, etc.?" ---UMMM THEY HAD TO IN ORDER TO PARTICIPATE. Google the project.

Seriously man. I've done enough of these type of projects to know how they work. DO you honestly think I just made up legal lingo for fun! Plus, I have done a couple of projects with the city. Nothing gets done without paperwork. Period. Especially, when the city is paying for it. They didn't work for free btw.

All you have to call and ask them for a copy of the contract. Do your homework, don't just accept what the media feeds you.

AC KO's picture

alberto cabrera wrote “Google the project.”

Since you’re very familiar with the “project,” it would be much easier if you located that project and provide its link for this group to review.

alberto cabrera wrote “DO you honestly think I just made up legal lingo for fun!”

Of course not! I’ve tried to locate bone-fide resources to help better understand this controversy. And contrary to what you wrote, I believe The Detroit News’ reporting, as it matches other media reports.

Importantly, I read the Mercedes’ affirmative defense lawsuit/s. Nowhere in the lawsuits does Mercedes argue there’s a contract that permits them to exploit the murals in its social media advertising campaign, as you suggested.

Did you read the lawsuit complaint?

Anthony Nguyen's picture

Can you show us the copy of the contract you called up and asked for and now citing? This would end this story and litigation pretty quickly.

Indeed, if the artists did sign over their rights to the mural to the City, who then licensed its rights to Mercedes, then this would have been over by now. Mercedes would have sent a copy of the agreements to the artists or at the very least to the courts along with their complaint and the court would have handled this by now.

Also, I looked up the project, but fail to see where they show/link to the contracts. Can you provide a link?

While I don't doubt what you state, in my experience it's rare that government entities would just hand over a copy of a contract to persons who is not a party to the contract. Hell, it's hard to get them to hand over a contract/information when you have a subpoena and/or a lawsuit against them. Also, contracts can fall through the cracks - maybe the contracts were supposed to be signed but weren't.

While I'm all for artists maintaining rights over their work, if they in fact done these as a work for hire or otherwise sold/gave up their rights, then there's nothing else they can do. But from my understanding of the situation they have not done that in this case. General Motors settled their matter after getting an unfavorable ruling, and an ad firm for VW just got bad news in Denmark in its case against Ai Weiwei:

http://www.artnews.com/2019/07/17/ai-weiwei-volkswagen-lawsuit/

Cedric TOSONI's picture

Interestingly, the intention of the art director was to put the mercedes forward, in an urban street art!
What did artists have to do? Negotiate with mercedes without scandal? or make a big buzz to then negotiate? I'm wondering ?