2:12pm PT by Ashley Cullins
Mercedes Benz Graffiti Lawsuit Rolls Past Motion to Dismiss
Mercedes Benz has convinced a Michigan federal judge that its complaints against street artists over Detroit murals that were shown in G 500 ads should move forward.
The luxury carmaker in March sued James Lewis, Daniel Bombardier, Jeff Soto and Maxx Gramajo after their work was shown in the background of a series of Detroit-based ads and the artists sent cease-and-desist letters in response. Mercedes is asking the court for a declaration that its use didn't infringe their copyrights in the works.
U.S. District Judge Avern Cohn on Wednesday denied the artists' motions to dismiss the complaints, which argued Mercedes couldn't sue because they hadn't yet registered copyrights in the works.
"This argument is not well taken," writes Cohn. "The complaint alleges that defendants made adverse claims against Mercedes based on their claimed rights in the murals and threatened to sue Mercedes. Under the standard for declaratory relief, the complaint states a ripe claim."
Next, Cohn addresses the arguments surrounding whether the use was protected by the Architectural Works Copyright Protection Act, which effectively bars copyright claims from architects whose publicly visible buildings are shown in photos. He found none of the case law cited supports the artists' argument that the murals aren't included in the AWCPA protection of photographs, specifically pointing to a 2000 decision in Leicester v. Warner Bros. that involved a series of sculptures in the courtyard of a building that were shown in Batman Forever.
"[T]he Ninth Circuit recognized that the plaintiff might have an infringement claim where, for example, someone created a reproduction of his sculpture divorced from the context of the building in which it was embodied, i.e. on a poster, t-shirt, or other print media. However, plaintiff did not have an infringement claim based on a photograph of the building that included the sculpture as a design element of the building," writes Cohn. "The Ninth Circuit rejected the plaintiff’s claim, finding that the towers, though a [pictorial, graphical or sculptural work] were part of an architectural work as elements in the 801 Building’s design."
Cohn found that Mercedes has alleged a plausible claim that its use is protected by the AWCPA, and notes "whether they will prevail on this claim is not before the court at this time." (Read the full decision below.)
Jeff Gluck, attorney for the artists, on Wednesday sent The Hollywood Reporter a statement via email in response to the decision.
"We are motivated and inspired by Judge Cohn's statement that these works of art '...are entitled to protection,'" he wrote. "Judge Cohn's order simply allows Mercedes' lawsuit to go forward to a place where the merits will be litigated, which is our plan, and what was expected. Anyone watching this litigation unfold should understand that If Mercedes wins, it could eviscerate artists' rights and fundamentally alter copyright protection for outdoor artwork. All artwork on all buildings could become unprotected, which would reshape our cities and impact an entire industry. I would not consider that a 'win' and I hope Mercedes understands what is at stake and what they are doing."
Mercedes Benz attorney Luke Nikas also responded to the decision, telling THR, "Mercedes supports artists and the visual arts and it’s unfortunate we were forced to pursue litigation because of the positions the defendants have taken.”
Sept. 11, 6:45 p.m. Updated with a statement from the lawyer for Mercedes Benz.