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Driving through the streets of Detroit, it’s clear murals are part of the urban landscape, a colorful ode to Motor City built into the architecture itself — at least that’s what Mercedes-Benz is trying to convince a Michigan federal judge of.
The luxury automaker in March sued four artists who saw a series of G-Class truck Instagram ads that showed their work in the background and sent threat letters in response. Mercedes is asking the court for a declaration that it isn’t copyright infringement either because the photos were a fair use of the art and/or because such a claim is precluded by the Architectural Works Copyright Protection Act, a 1990 law that effectively limits copyright claims involving architecture to the functional design of the structure. (Building a copycat structure isn’t permitted, but so far taking a photo of the exterior of the building has been allowed.)
It’s not an entirely untraveled legal avenue, but it’s one that hasn’t been explored to its ends.
Artist Adrian Falkner in January 2018 sued General Motors after his mural on the side of a parking garage was shown in a Cadillac XT5 campaign, and that carmaker made a similar argument. That case eventually settled, but not before a California federal judge denied GM’s motion for summary judgment, unconvinced that the mural was part of the underlying architectural work. (Disputes between artists and other companies including Oakley and H&M also ended in a ceasefire.)
Now, Mercedes is taking a legal turn that could effectively redraw copyright protection for street artists. In order to be protected by copyright, a work must be sufficiently original and fixed in a tangible medium. Here, that medium is the outside of several buildings. The works were created as part of the Murals in the Market Festival, which highlights Detroit’s Eastern Market district. And Mercedes says they were created for a functional purpose: supporting the festival’s mission of “increasing tourism, traffic, economic development, and safety in the Eastern Market.” If the art was reproduced on a T-shirt or postcard, without the context of the building, the artist might have a viable copyright claim, Mercedes argues, but the AWCPA provides “absolute protection for photos of buildings.”
In support briefs, the artists argue that the statute only applies to the copyright for the building itself, not the art at issue, and Mercedes can’t avoid a fair use analysis by “pretending that all photographs of buildings are permitted.”
The artists’ legal team is also challenging the luxury carmaker’s lawsuits on procedural grounds, arguing the claims must be dismissed because there are no registered copyrights for the works at issue and that’s a prerequisite for such litigation. On that front, Mercedes argues its declaratory judgment claim is proper because the “threat of litigation creates a case or controversy, regardless of whether a copyright is registered.”
A Michigan federal judge is set to hear their motions to dismiss on Monday afternoon.
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