Over the years we’ve covered many stories about how the American copyright regime applies to graffiti art.  Now, a lawsuit against car manufacturer General Motors may test a new legal angle in this area of case law.

The case involves a mural painted on a parking structure in Detroit in 2014.  The artist, Adrian Falkner (who works under the pseudonym SMASH 137), is a Swiss resident who has exhibited works in museums and galleries around the world.  In 2016, the mural was prominently featured in a marketing campaign for a new model of Cadillac, without Falkner’s knowledge or consent. 
 
Earlier this year, Falkner sued GM in federal court, claiming that the advertisements constitute copyright infringement of his original artwork.  (See C.D. Cal. Docket No. 2:18-cv-00549-SVW-JPR.)   Falkner also seeks to bring a claim for removal of copyright management information under 17 U.S.C. § 1202, on the basis that the Cadillac ads deliberately used images that did not show the portion of the mural where his signature appeared.  (We’ve seen similar claims before by other graffiti artists who argue that their signature or “tag” is akin to copyright management information, or perhaps a trademark or logo.)   

Falkner, like other graffiti artist plaintiffs before him, emphasizes the damage allegedly done to his reputation here; he says that he has been extremely selective about having his work associated with any commercial brand.  He also seeks, among other relief, an accounting of how much GM generated from the offending campaign, punitive damages, and injunctive relief to halt further use of the allegedly infringing advertisements.  Because Falkner did not apply to register the work until 2018, he cannot seek statutory damages and, should he ultimately prevail in the case, he would eventually need to prove his actual damages—a task which can sometimes prove challenging for artists, especially graffiti artists. 

As we’ve discussed before, it has been argued (albeit with little support from case law) that graffiti art should not enjoy the protection of copyright law where it is created through illegal vandalism.  But that theory would be useless to GM on the facts presented here—the plaintiff alleges that his mural was not illegal, but rather was created by invitation.

So here, GM has now put forward a different defense.  In a motion filed this summer, GM argues that Falkner’s claims should be rejected due to a statutory provision, 17 U.S.C. § 120(a), which provides that a “copyright in 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 provision limits infringement claims where someone is photographing or painting a work “if the building in which the work is embodied” is in public view.  GM argues that, because the mural is incorporated into a building, the mural is “subject to the same pictorial representation exemption as the underlying architectural work.”  In response, the plaintiff has argued, among other things, that that interpretation is not supported by the statutory language or by case law, noting that, “if GM’s view prevailed, all graffiti art that exists on a building—that is, most graffiti art—would suddenly be unprotected by copyright.”  That’s not quite true; as the defendant explained, “recognizing a copyright in [pictorial] elements [incorporated into] a building is not inconsistent with finding that such copyrights are subject to the pictorial representation exemption.”  For example, if the defendant’s argument carries the day, a graffiti copyright owner like Falkner might still be able to sue for copyright infringement if portions of his mural were copied onto a tee shirt; but the mere photographing of the building—and the artwork on it—should not give rise to liability, GM argues.  

As we’ve noted before, graffiti art has enjoyed more prestige in the art world in recent years (as demonstrated in the recent 5Pointz case).  It’s also a hot commodity for commercial purposes, and there have been many cases involving graffiti art being copied by consumer brands.  But many of these cases didn’t involve an infringement defendant photographing the artwork itself in situ on the building where it was created (for example, in graffiti artist Rime’s case against fashion house Moschino, the defendants allegedly copied parts of Rime’s works onto a dress; likewise, graffiti artist Dash Snow’s estate sued when fast food chain McDonald’s copied parts of his works as decoration in their restaurants).  And other cases that did involve that kind of copying (for example, a lawsuit against a number of defendants, including singer Sara Bareilles and fashion brand Coach, for using a wall of graffiti as a backdrop for advertisements) have settled without the need for a court to weigh in on these issues.  So this case may represent the first opportunity for a court to examine how a statutory exception for photographs of buildings should apply to artworks on those buildings.   Questions raised in the parties’ briefs include whether the parking garage on which Falkner’s work appears is an architectural work at all (Falkner urges it is not, and that therefore the statutory provision GM cites has no relevance here).  Another issue is that of conceptual separability, and whether the pictorial representation exception applies to artworks that are part of but conceptually separable from the underlying architectural work.  (We recently wrote about conceptual separability in a different context, here.)

We'll look forward to a forthcoming decision by the court on GM's motion, which is now fully briefed. But should GM prevail, such a ruling could change the economic incentives involved in graffiti on buildings, both for the artists and for those who wish to exploit such artworks.