Graffiti artist is allowed to continue copyright infringement lawsuit

Brand owners are constantly trying to make their products appeal to consumers. Graffiti is popular in youth culture right now and brand owners are attempting to capitalize on that popularity. Brand owners incorporate graffiti into their marketing campaigns to try to appeal to young consumers. Using graffiti in marketing can be a good strategy if it is done with the permission of the artist. If the brand owner gets the permission of the graffiti artist to use their art, it can be a mutually beneficial relationship. If the brand owner does not get the permission of the graffiti artist, the brand owner risks alienating the consumers they were trying to court and a copyright infringement lawsuit from the graffiti artist.

A copyright is a set of exclusive rights granted to an artist that creates a new artistic work. An artist is granted a copyright when they express their art in a tangible medium. This means that a work of art is granted some copyright protections the moment it is finished. An artist can register their copyright with the Library of Congress to gain additional right in the Untied States, but registration of the copyright is not required to be granted a copyright. Copyright grants the owner of the copyright the exclusive right to reproduce, display, perform, distribute, transmit and make derivative works based on the copyrighted work. If someone other than the copyright owner attempts to exercise one of these rights it can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction and to recover damages for copyright infringement which has occurred.

A case which illustrates what can go wrong when a brand owner does not get the permission of a graffiti artist is Adrian Falkner v. General Motors LLC, 18-cv-00549 (C.D. CA 2018). The case revolves around the defendant’s marketing campaign which featured their product next to a graffiti mural created by the plaintiff. The plaintiff’s art work was a graffiti mural on a parking garage wall. The mural included a small plaque with copyright information and the signature of the artist. The defendant took a picture of their product, a car, next to the mural and used that picture in a marketing campaign. The picture used by the defendant cropped out the signature of the plaintiff and the small plaque. The plaintiff sued the defendant for copyright infringement alleging that the photograph infringed on the plaintiffs exclusive right to reproduce the copyrighted work.

The defendant moved for summary judgement on the theory that because the graffiti was on a wall it was an architectural work, and therefore entitled to less copyright protection. 17 U.S.C. Section 102(a)(5) of United States Copyright Law protects pictorial, graphic, and sculptural (“PGS”) works, and Section 102(a)(8), protects
architectural works. The copyright associated with 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. This means that people are free to take pictures of buildings, but taking the picture of a pictorial work would be copyright infringement.

The court did not grant the motion for summary judgement because the Court could not conclude that Section 120(a)(8) applies to the plaintiff’s graffiti. The court found that the graffiti is not part of an architectural work as a matter of law, therefore the court could not reach the issue of whether Section 120(a) permits photographs of the mural.

The defendant came up with a novel legal argument, but the court did no find it persuasive enough to grant the motion for summary judgement.

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