GM Used Graffiti in a Car Ad. Should the Artist Be Paid?

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.

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GM Used Graffiti in a Car Ad. Should the Artist Be Paid?
Alan Feuer
, New York Times

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.

The law, however, is struggling to catch up with the change in taste and culture, especially when it comes to the issue of when graffiti — an ephemeral form of art — deserves the safeguards of a copyright. This month a federal judge in California will entertain exactly that question as he hears oral arguments in a copyright lawsuit that could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists who create it.

The lawsuit, Falkner v. General Motors Co., was filed in January by Adrian Falkner, a Swiss graffiti artist better known as Smash 137, who was commissioned four years ago by businessman Dan Gilbert to paint a mural on the outdoor elevator shed of a 10-story parking garage he owns in Detroit. The garage, called the Z because of its zigzag shape, was designed both as a place to park your car and as a kind of public art gallery. Two dozen other graffiti artists adorned its walls with their creations, though Falkner’s piece had a privileged position on the top floor of the structure, surrounded by views of the city’s downtown skyline.

For just that reason, court papers say, a freelance photographer working with General Motors Co. used the mural in 2016 as the backdrop for a series of photos for a Cadillac ad campaign called “Art of the Drive.” GM posted the photos on its Facebook, Twitter and Instagram accounts without Falkner’s knowledge or consent. So he sued the company in U.S. District Court in Los Angeles, where the photographer is based, claiming that GM had infringed on his mural’s copyright. A hearing to consider arguments in the case is scheduled for Monday.

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 Falkner, who has shown his pieces in galleries across the United States and Europe.

In 2014, three graffiti artists — among them Jason Williams, who uses the tagging name Revok — sued the fashion designer Roberto Cavalli, claiming he had infringed on their copyrights by borrowing parts of a mural they had painted in San Francisco’s Mission District in a line of clothes, shoes and handbags. The case was settled out of court for undisclosed terms before a judge could consider the merits of the case.

This year, Williams was engaged in a copyright battle with the clothing company H & M after it used a mural he had painted illegally on a handball court in Brooklyn in one of its ad campaigns. Williams had sent the clothier a cease-and-desist letter, and in March H & M filed suit against him, asking a judge to declare he had no claim because his work had been made without permission. But before the judge could issue a decision in the case, H & M — facing criticism from the graffiti community — dropped its suit and the ad campaign that included Williams’ work.

Around the same time, in a similar case that hinged on a different aspect of the law, a federal judge in Brooklyn awarded $6.7 million to a group of graffiti artists who had showed their work for years at the renowned 5 Pointz complex in Queens, which was demolished to make room for luxury apartments. A jury had found that the owner who had given the artists permission to paint on his buildings was liable for destroying their work under the Visual Artists Rights Act, which protects public art of “recognized stature” created on someone else’s property.

Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for GM sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of “architectural works” do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Falkner’s mural was not protected under the law because it was “incorporated into a building.”

“If the parking structure is a ‘building,’ then that is the end of the analysis,” GM’s lawyers wrote. They added: “Joe Public should not be required to research the history of the building and hire architectural experts before he snaps a photograph.”

Louis Petrich, the automaker’s lead lawyer, declined to be interviewed. But Falkner’s lawyer, Jeff Gluck, who also represented Williams, disputed GM’s line of reasoning.

Last week, Gluck filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Gluck maintained, it would have widespread implications.

“If GM’s view prevailed,” he wrote, “all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.”

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