Again with the Graffiti advertising that turns into a copyright infringement lawsuit

A copyright is a set of exclusive rights granted to the creator of a new artistic work. Copyright law in the United States grants an artist the exclusive right to reproduce, distribute, perform, or display the copyrighted work and to make derivative works. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for infringement which has already occurred.

Prior blog articles on this website have discussed how brand owners are using graffiti in their advertisements. Companies today are trying to make their products look cool by placing the works of popular graffiti artists in advertisements. Photographing a copyrighted work, even if it is publicly displayed, is making a derivative work of the copyright work. Making a derivative work of a copyrighted work, without the permission of the copyright owner is considered copyright infringement. Brand owners that want to appeal to a younger generation of consumers risk considerable copyright infringement liability if they incorporate graffiti into advertising without getting the permission of the copyright owner. Brand owners must also deal with the stigma of being called a thief by the graffiti artist whose fans they were trying to attract.

When facing a copyright infringement lawsuit, defendants generally can respond in a few ways. A defendant can argue that their infringement of a copyright is excused by fair use, or the defendant can argue that the copyright on the work is invalid for some reason. It would be very difficult to persuade a court in the United States that using a copyrighted work in an advertisement is fair use because, much of the fair use analysis revolves around the commercial value of the copyrighted work and how the infringement affects that value. If advertising was considered a fair use, the market place for stock photos would evaporate overnight. That leaves defendants with the option to argue that the work is not actually protected by copyright.

A case which illustrates the trouble that advertising, which incorporates unlicensed copyrighted material, can create for a brand owner is ADRIAN FALKNER v. GENERAL MOTORS LLC, 2:18-cv-00549 (C.D.CA 2018). The plaintiff is graffiti artist Adrian Flakner, also known as SMASH 137. Flakner created a graffiti mural which was displayed on a Detroit parking garage. The defendant is General Motors, a major automotive manufacturer in the United States. General Motors had an advertising campaign which featured their cars parked next to the mural created by Flakner. Flakner sued General Motors for copyright infringement.

General Motors recently moved for summary judgement arguing that the Plaintiff’s infringement claim fails as a matter of law because the parking structure and any pictorial, graphic or sculptural works that are incorporated into it may be freely photographed without liability pursuant to the Architectural Works Copyright Protection Act. Essentially General Motors is saying that Flakner’s Graffiti mural has been integrated into the building, and that photographs of buildings are exempted from copyright protection by the pictorial representation exemption, 17 U.S.C. §120(a).

While this argument may seem like a stretch, the concept is supported by the statute and case law. For instance in Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000) the defendants were found to not infringe on the copyright of sculptures placed outside a building which was in a movie. We will have to wait and see how the court rules on this issue, but it will make or break graffiti as a copyrightable art form.

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