Mercedes Goes To Court To Get Background Use Of Public Murals In Promotional Pics Deemed Fair Use

from the mural-victory dept

The unsettled nature of how copyright law applies to public works of art like murals continues to be frustrating in the extreme. We’ve already seen examples of how this becomes an issue with mural artists whose work briefly appears in unrelated works, such as music videos, as those works are filmed in public. You guys remember public, right? It’s that place we all get to coexist and enjoy together without constantly stomping on each other’s necks over intellectual property rights. Except we don’t anymore, as far too many artists believe that they can imprint their art in full view of the public and then disallow any commercial depiction of that public space.

And if that doesn’t sound idiotic to you, you need psychological care.

This is once again at issue, as Mercedes has asked a court to make it clear that murals appearing on public walls in the background of a few promotional photos of their vehicles is fair use. This is in response to the very threatening noises made by four mural artists to their murals appearing in the background of some Instagram images. To be clear, Mercedes is suing only to ask for a court to declare images, like the following, fair use, not to attack the artists themselves.

That partial mural in the background is one of the murals in dispute by the four artists. The mural is not the focus of the photo. It’s not the subject of the photo. It’s just that Mercedes took pictures of its vehicle driving around in public and those murals are in the background, partially depicted. Whatever that is, it sure doesn’t sound like copyright infringement, and sure does sound a hell of a lot like fair use. Which is exactly what Mercedes is asking the court to declare.

Mercedes has filed lawsuits against four artists after they accused the car company of infringing upon their copyright by including graffiti murals in the backgrounds of car photos posted to Instagram.

The Detroit News reports that in its lawsuits filed on March 29th, Mercedes is asking a federal judge to rule in its favor against claims being made by artists Daniel Bombardier, James “Dabls” Lewis, Jeff Soto, and Maxx Gramajo.

It was only a year after the photos were published that the artists began accusing Mercedes of copyright infringement. All that harm must have really been delayed, I suppose. As a symbol of their artistic dedication, even after Mercedes took the photos down from Instagram due to the complaints, those same artists continued to demand Mercedes pay them for the images. In its suit, the car company is arguing both that its use was fair use and that the murals are exempt from copyright as a matter of law.

Mercedes argues that its inclusion of the murals was fair use and that the murals are exempt from copyright protection under the Architectural WorksCopyright Protection Act since they’re permanent parts of the architecture.

Which seems like a bit of a stretch. Permanent is not the word I would use for graffiti, having seen it, you know, removed before. The fair use argument is much stronger, given the limited nature of the use, the fact that it wasn’t the subject of the larger use, and the damned fact that all of this is in full view of the public. Mercedes was using Detroit to sell its cars, not these murals. Calling this copyright infringement would make no more sense than a restaurant across the street from the murals being accused of replicating a public performance by putting in patio seating in full view of the mural.

So let’s hope the courts get this right and we get some caselaw to do with public murals.

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Companies: mercedes

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Comments on “Mercedes Goes To Court To Get Background Use Of Public Murals In Promotional Pics Deemed Fair Use”

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110 Comments
Matthew (profile) says:

Can they show intent?

If emails pop up showing that Mercedes’ team planned on using the murals as background, does that change things? Is there a legal difference between just driving around, taking pictures and driving around to take pictures in front of certain places? Should there be?
How does this relate to things like Charging Bull and Fearless Girl?

PaulT (profile) says:

"Which seems like a bit of a stretch. Permanent is not the word I would use for graffiti, having seen it, you know, removed before"

Well, first off I’d have to ask – were these murals commissioned or did the artists just take it upon themselves to paint them on random buildings? If the former, I’d argue that they are indeed part of the architecture rather than simple graffiti.

Secondly, even if it is graffiti, there are examples where people have fought to protect instances of that due to the extra value it placed on the location, despite them not having been requested to begin with (Banksy’s work comes to mind).

Lisa Westveld (profile) says:

Re: Re:

Most art isn’t permanent. Some art might survive for centuries but like the fire in the Notre Dame recently, art can also go up in smoke real fast.
And all that matters is if the murals are artistic or not and who the authors of the murals is. If the restaurant-owner hired the artist to paint the mural then this would be work-for-hire and the restaurant would be the author of the work, not the artist.
But that’s not very likely…

Dr. Phil Istine says:

You can’t just splash a couple buckets of paint around on where anyone can/will/must see your "artwork", whether they like it or not, and then hold the public hostage demanding a ransom from everyone who you’ve forced to be confronted with your (presumably "hot") shit.

I like art just as much as the next guy (which is not at all, according to the guy sitting next to me), but if you try to ram it down my optical nerves, YOU gots ta pay ME, biatch.

PaulT (profile) says:

Re: Re: Re: Re:

Plus, as I’ve mentioned elsewhere – a non-zero number of viewers are going to be interested in finding out where the mural is and be interested either in visiting or finding other work by the same people. One of the benefits of not locking culture up into silos is that people sometimes cross over to places they’d not normally be otherwise.

Anonymous Coward says:

Re: Re: Re:2 Re:

If the art is in a public place it is public domain to the extent that it may be included in photography and videography, even for commercial purposes, and no royalties should be expected. Why should anyone, corporation or individual, be prevented from filming or taking photos anywhere in public simply because some would-be artist decided to paint up the area?

bw1 says:

Re: Re: Re:4 Re:

"Nope, as Google isn’t making money on Street view."

Oh you poor naive little dear. Google monetizes EVERYTHING they do in some way. It all serves to draw eyeballs and enhance the value of advertising on their sites. Just like Mercedes isn’t selling the photo – they’re using it to enhance the market value of their cars.

The choice of color for the siding and trim on my house are artistic decisions with aesthetic value. If I can’t exclude a crucifix in a jar of urine from the legal definition of art then you can’t exclude the way I paint my house or trim my shrubs. Google is profiting from the use of my art in the same way as Mercedes might be form that mural.

An artist has no more reasonable expectation of barring the use of an image of his art in the public view than a cop has an expectation of barring the use of video of him beating a handcuffed suspect on the street, and about the same reasonable expectation of moral respect.

Bamboo Harvester (profile) says:

Re: Re: Re:2 Re:

So a Jaguar or Bently ad showing the car driving past Buckingham Palace means they owe royalties to the Queen?

ANY car ad showing the Brooklyn or Golden Gate Bridge in the background owes royalties to NY or CA?

Hey, MY car was in an ad for my town a few years back – it was parked in front of my office, and you can even read the license plate number in the advert. Does the town owe ME royalty money?

Scary Devil Monastery (profile) says:

Re: Re: Re:

"No one is asking money if you see it. The artist is demanding to be paid for the use of his work in the advertisements by Mercedes."

A slippery slope argument which would mean that any street artist would be able to block the entire public space from use by…the public.

A copyright troll would be able to use the same legal arguments used in the Mercedes case to sue the ever-living sh*t out of random tourists as well.

Cases such as this richly demonstrate how copyright law has gone from being a mere nuisance to becoming an abomination in the hands of copyright trolls and opportunists.

Lisa Westveld (profile) says:

Location matters, though...

Problem is that the location of the mural is important, as Europe doesn’t have fair-use laws like the US. In Europe, buildings and murals can be protected by copyright, making such pictures a violation. As Mercedes is also located in Europe, they would have to comply to European laws, if the mural is in Europe.
A good example of this is the Eiffel Tower in Paris. The tower itself is too old and thus public domain, but the lights in this tower are pretty recent and considered artistic enough to qualify for copyrights. This means that you can’t take pictures of the Eiffel tower at night when the lights are on without paying royalties!
Problem is that Mercedes has paid royalties before in similar situations so I don’t understand why they didn’t this time. I doubt it’s fair use as it is used to promote their own product in a commercial way so I agree with the artists: Mercedes has to cough up royalties…

Anonymous Coward says:

Re: Re: Re: Location matters, though...

That sounds like somebody has money, and they have just given us an excuse to demand some of it. A public space is a public space,where advertising photos can be taken, so why should the presence of public art prevent that use of a public space, even if the selection of the space is intentional?

Lisa Westveld (profile) says:

Re: Re: Re:2 Location matters, though...

Public space or not, the artwork is still private property. So if you leave your car on a public road, would I be allowed to take it and drive it away?
The same is true about art. The artist intended their art to be shown in a specific location for a specific audience. By making pictures of it and publishing them, the author basically loses control over their own work. That cannot be allowed without compensation. And this compensation is the royalties they demand.

Rocky says:

Re: Re: Re:3 Location matters, though...

Public space or not, the artwork is still private property. So if you leave your car on a public road, would I be allowed to take it and drive it away?

Is the artwork private property? I don’t think it’s that clear cut. Does the artist own the wall it’s painted on? If not, and the agreement only covers that the artist was allowed to paint the wall – the owner of the wall can tear it down at any time and in effect destroying the artists private property. Or the owner can move the wall somewhere else where no one can view it.

Comparing theft of a car to having a piece of art in a background of a photo is just.. well stupid. You can’t compare the two, in the case of the car you deprived someone of a physical item – having an artwork in the background of a photo didn’t deprive anyone of anything.

And finally and the impossibility that some clamor for, that every instance of content usage must be compensated for. How does one find out if something painted on the wall is art that needs to licensed or if it’s illegal graffiti. And in the latter case, if it’s illegal graffiti it’s still art – does it need to licensed also to be reproduced? How do you find the artist?

The effect of that reasoning is that it will be cheaper and easier to edit out anything that resembles art for any usage that isn’t a clear cut case of fair use – which doesn’t really help in promoting the arts and sciences.

Lisa Westveld (profile) says:

Re: Re: Re:4 Location matters, though...

The artist doesn’t own the wall so if the owner destroys the art then that’s okay. But he still owns the work he did, no matter what happens afterwards with it.
There isn’t anything physical being stolen here, but Mercedes is making use of something that isn’t theirs to use.
As for legal and illegal graffiti… Well, the illegal graffiti is a misdemeanor and the artist could be forced to pay a fine and the costs for clean-up. It’s still their work, though. And if it’s artistic then it has value. You cannot take this value of their work and use it for your own commercial purposes without compensating the original artist. Not even if the artist was arrested for making it and ordered to clean it up.
As for promoting art. That’s not the purpose of art. Art is meant to make people think about something. To bring emotions to people who look at it. Artists don’t always want their art to be promoted as they would become mainstream afterwards. Many artists are rather more exclusive with just a small group of followers. Art isn’t about promotions and making profits…

PaulT (profile) says:

Re: Re: Re:5 Location matters, though...

"There isn’t anything physical being stolen here, but Mercedes is making use of something that isn’t theirs to use."

As is the artist.

"Art is meant to make people think about something. To bring emotions to people who look at it"

Then why do you have such a problem with a much larger audience being exposed to it than could possibly see it in person?

"Many artists are rather more exclusive with just a small group of followers"

Yes, and those artists put their art in galleries, not on the sides of buildings on the public street.

"Art isn’t about promotions and making profits"

and yet, here we are with artists demanding profits.

PaulT (profile) says:

Re: Re: Re:3 Location matters, though...

"So if you leave your car on a public road, would I be allowed to take it and drive it away?"

No, but I’d be able to take a photo of it and leave the car where it is. Stupid analogy is stupid…

"The artist intended their art to be shown in a specific location for a specific audience"

…and there it stays.

"By making pictures of it and publishing them, the author basically loses control over their own work"

Then they should be putting it in a place where it’s visible to everybody on the public street.

Anonymous Coward says:

Re: Re: Re:3 Location matters, though...

Public space or not, the artwork is still private property. So if you leave your car on a public road, would I be allowed to take it and drive it away?

No. Likewise, you wouldn’t be allowed to walk up and carry away the wall that the mural is on.

However, Mercedes isn’t going to be suing every muralist who takes a photo that just happens to have a Mercedes in the picture. Doing so, I hope you would agree, would be idiotic, even though Mercedes has not only copyright, but also patents and trade marks on the elements that would be depicted in the photo.

PaulT (profile) says:

Re: Re: Re: Location matters, though...

This is where it gets silly, though. Should Mercedes be getting permission from every architect, street planner and sign maker whose art happens to appear in the background of every shot they take in public?

If not, what makes the mural artists so much better than those other people? If so, what’s suddenly changed to make this necessary when it wasn’t before?

If Mercedes had set up a photoshoot specifically in front of the mural, then there might be a point here. But, happening to capture publicly visible images as they photograph the vehicle driving around a city is quite another.

Lisa Westveld (profile) says:

Re: Re: Re:2 Location matters, though...

In Europe? In many cases, yes!
But it must be clear the buildings have an artistic value, the same as with any other copyrighted material. Most houses aren’t built to be artistic. But in Europe houses are actually protected by copyright if they qualify as works of art. Same with statues, btw.
Even a car could be considered artistic but they’re generally aren’t.

As for the use of these murals in those Mercedes pictures. The murals are still very noticeable in the pictures and you don’t have to use all of a piece of work to violate copyrights. The murals do add value to the pictures as they add colors to something that would otherwise be very greyish…

PaulT (profile) says:

Re: Re: Re:3 Location matters, though...

"In Europe? In many cases, yes!"

Why do you keep talking about Europe in a story about Detroit? I mean, I’m fairly sure you’re wrong about the actual extent of these things, but even if you’re correct they’re irrelevant to this discussion.

"The murals are still very noticeable in the pictures"

So are the electrical pylons and road surfaces.

"The murals do add value to the pictures as they add colors"

They add colours to the surroundings whether or not somebody takes pictures of them. That shouldn’t mean they get to demand a ransom because someone took a picture of a public space, regardless of the purpose of that picture. That gets extraordinarily complicated once you’re talking about things like Instagram as well, in ways where it would be better for everyone involved not to be a lawyer baiting dick.

Lisa Westveld (profile) says:

Re: Re: Re:4 Location matters, though...

I’m not sure about laws in Detroit but if they are similar to Europe then those murals would be protected by copyright and Mercedes would have violated it. It’s that simple. It’s just that in Europe, there have been various cases in court similar to this and the artists generally won.
The main difference is that the US has a "Fair use" system that might allow an escape. But as the pictures are used for their own commercial promotions, that would be unlikely.
As for people taking pictures of these murals to make profits, that’s not fair either. You’re basically profiting from someone else’s work.
As for Instagram… That’s where the safe harbors laws apply. As a provider, they are not responsible for any content as long as they remove some content after receiving a DMCA complaint. This they do.

PaulT (profile) says:

Re: Re: Re:5 Location matters, though...

"Europe "

There you go again. What in hell does that have to do with the matter at hand?

"You’re basically profiting from someone else’s work. "

So, nobody can document anything they see without paying 100 people so long as there’s profit to be had. I’m glad the real world is not as messed up as the one in your head.

"As for Instagram… That’s where the safe harbors laws apply."

That protects instagram – not the people you’re trying to fleece.

Lisa Westveld (profile) says:

Re: Re: Re:6 Location matters, though...

The difference between Europe and the US is basically the definition of "Fair use". They’re otherwise very similar. But fair use isn’t recognized in Europe so Mercedes could not use that as an excuse in Europe, while they can try in the USA.
But fair use for commercial usage of art without a license? That’s probably going to fail…

Anonymous Coward says:

Re: Re: Re:7 Location matters, though...

This is where you’re incorrect: fair use is one of the things that’s broader in the US than in Europe, but both places also have other restrictions on copyright that may or may not impact this case.

The big difference that may get Mercedes into trouble if this were in Europe is that of intent in copyright. In Europe, if the artist can prove that there is some reason to believe that the mural was intended to increase the value of the image, the artist would be expected to get a cut of any profits made off that image.

In the US, the artist would have to prove that Mercedes intentionally parked in front of that specific mural, with the express purpose of increasing the photographic value of their image by including the mural in it.

In other words, in Europe, the burden of proof would be on Mercedes to disprove intent, whereas in the US the burden of proof would be on the artist to prove Mercedes’ intent.

Since this is in Detroit, which is in the US, that’s where things stop.

You quoted the Charging Bull case below, but there’s an even older one about a stained glass window created by a noted artist and placed in a house; there was a big legal battle around who owned what rights regarding the window (I can’t remember the details) but because the window wasn’t the subject of the other actions, but only was displayed incidentally, the case was thrown out by the court. This would likewise happen with said mural (or even the bull).

Thad (profile) says:

Re: Re: Re:8 Location matters, though

In the US, the artist would have to prove that Mercedes intentionally parked in front of that specific mural, with the express purpose of increasing the photographic value of their image by including the mural in it.

I think that’s an interesting point, and may indeed be what this case hinges on.

I don’t think it’s the slam-dunk for the mural artists that Lisa is indicating it is, and I don’t think it’s the slam-dunk for Mercedes that most everybody else in this thread is indicating it is. Fair use analysis is complicated; Mercedes has a solid claim on some of the fair use factors (purpose and character, effect on potential market) and the artists have a good claim on others (nature of the work, amount and substantiality used).

It sure looks to me like Mercedes saw some attractive street art and intentionally used it as a backdrop for its photos to increase their commercial value. I think that makes the fair use argument very different than it would be if it were, say, somebody just taking a photo of it and putting it up on Instagram, or even taking photos of these works and publishing them in a photography book.

I won’t hazard a guess about how these suits will come out. I could very easily see them going either way.

PaulT (profile) says:

Re: Re: Re:7 Location matters, though...

Again, banging on about Europe in an article about Detroit. Do you have so little to actually say about the actual discussion?

My personal opinion – if it’s visible from the public street, it’s fair to use it for any purpose in a photograph. Don’t like it? Don’t put it on the public sodding street.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:3 Location matters, though...

If the ad were to be shown in the EU you might be right. No one in the US is required to follow EU law.

It will, however, be interesting as to how much pressure the EU puts on Mercedes, an EU company, for not following their rules when that ‘not following’ didn’t take place in the EU.

Lisa Westveld (profile) says:

Re: Re: Re:4 Location matters, though...

I pointed out Europe as Europe has no "Fair use" clause like the US. So in Europe, Mercedes would definitely lose this. But in the USA, they might get away with this fair use claim.
Still, even the US will allow copyright to artwork in public. TechDirt reported about something like this in the past: https://www.techdirt.com/articles/20170412/11215937137/bull-statue-copyright-claim-is-ridiculous-heres-why-it-just-might-work.shtml
The "Charging Bull" statue in New York is protected by copyright so it has the same protection as this mural. Use of this statue in pictures for advertisements might thus be unwise. Making a copy of that statue would also be unwise. Even though the statue was placed there without permission!
Of course, you could make art based on a charging bull. You just can’t make art based on this statue.

Anonymous Coward says:

Re: Re: Re:5 Location matters, though...

You just can’t make art based on this statue.

No, but you can take photos of it for any purpose, commercial or otherwise, because it’s in a public space. It even blocks public right-of-way.

If the art itself is not a commercial enterprise then it is a public installation and should be treated with the same commercial viability as a tree.

Lisa Westveld (profile) says:

Re: Re: Re:6 Location matters, though...

Actually, that depends on who holds the copyrights. In the USA, most public art would have the Government as copyright holder as public art is considered "Work-for-hire" where the government did the hiring. The Charging Bull statue in New York, for example, has thus become more or less under control by the government. The original author can’t make claims as he basically "gave" that statue away.
But art on private property that’s visible from public space is a bit different. That wall is private property. The mural is thus on private property.
There’s a good discussion about this at https://alj.artrepreneur.com/copyright-public-art/ where they suggest the USA would apply a fair use test, while Sweden just considers it a violation. Yet the way Mercedes used these murals might mean it’s not fair use…

Thad (profile) says:

Re: Re: Re:7 Location matters, though...

Actually, that depends on who holds the copyrights. In the USA, most public art would have the Government as copyright holder as public art is considered "Work-for-hire" where the government did the hiring.

It depends on which government. The federal government cannot hold copyrights; works created by the federal government are public domain. Some state and local governments claim copyrights, however.

The Charging Bull statue in New York, for example, has thus become more or less under control by the government. The original author can’t make claims as he basically "gave" that statue away.

Yeah, that’s wrong.

First of all, transferring a copyright does not make it work-for-hire. If I create something and then sell or give away the copyright, I still retain certain legal rights as the original creator that I do not have if I produced the work under a for-hire arrangement.

Second, Arturo Di Modica, the Charging Bull sculptor, still owns both the physical sculpture and its copyright. He has loaned the sculpture to the City of New York but has not relinquished ownership of it; neither has he relinquished his copyright. He not only claims copyright on the statue, he has attempted to legally enforce it. Again, did you read the article you linked?

There’s a good discussion about this at https://alj.artrepreneur.com/copyright-public-art/ where they suggest the USA would apply a fair use test, while Sweden just considers it a violation. Yet the way Mercedes used these murals might mean it’s not fair use…

I’m beginning to suspect you are not the authority on US copyright law that you are presenting yourself to be.

John says:

Re: Re: Re:3 Location matters, though...

No, no they don’t deserve shit. The question is did the owner of the building pay for the artwork? If so, the artists have no claim to it. It’s like taking a photo of a mona lisa in public display then demanding money afterwards when someone posts the picture publicly. Also if someone buys a painting they are then free to do with it what they want. These artists are a bunch of idiots trying to profit from an image in public display. I agree with the author, you need professional help if you think otherwise. If you want to prohibit people from using images of your art, do not put it in public space and put a copyright notice on it. Otherwise they need to stfu.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Location matters, though...

"Even a car could be considered artistic but they’re generally aren’t. "

So basically if you are a tourist taking pictures you are, according to your analogue, infringing on someone’s rights if anything from a koenigsegg, tesla, custom paint job, designer dress, inventive street sign, creative street decor, or even artistic makeup gets caught on camera?

Man, tourism just got hideously expensive.

See, this is why copyright adherents are analogous to a religious cult – the argument leaves nothing in real life able to exist past an 18th-century technology paradigm.

Algorithm-driven Rabbit Hole says:

Re: Lesbian Zombie Alert! Back after mere 18 month gap!

This one has all the signs:

1) burst of comments after 18 month gap (why that period recurs so frequently I’ve no idea: it’s usually after a first few)

2) can’t decide on name: Lisa Westveld or Lisae Boucher or Lisa, and back to Westveld

3) low number of comments, this one averaging (a rather high) 22 per year, but that misleads because skipped 2018, and sparse on first page, basically one per year since 2014

4) ANCIENT: begun 5 Sep 2007! Dropping in for over 11 years, eh?

5) shows up for no special reason in a Timothy Geigner piece

Oh, I admit that — except for the HIGHLY unlikely reveal of sex pref in the "about" — this one appears more believable than most. It’s on topic, a bit more text.

But does have the characteristic ODD points. Also no mention of gap, just blandly supportive: no perspective on the reduced state of Techdirt or piracy in general.

I think the lesbian fillip is just exactly what the younger Timothy Geigner would have made up to titillate otherwise all-male crowd, and that being stated explicitly is just exactly his blatant style: in short that he made up a "character sheet". WHO states their sex pref to the world when utterly irrelevant? It’s bizarre! — But here it hedges against the fanboys trying to make time with apparent female, not a minor consideration. — The "lesbian" claim also makes you easy prey when your brains fall out: you think I’m picking on "her", right?

Anyhoo, the five enumerated points are FACTS — that recur and define zombies.


PS:
6) the zombiess is hot on this topic, back after hour and a half replying. That’s exactly as I think astro-turfing would do to simulate / provoke interest.

We’ll see if this one returns: if not, that’d be Fact #7…

Anonymous Coward says:

Re: Location matters, though...

This means that you can’t take pictures of the Eiffel tower at night when the lights are on without paying royalties!

That’s just crazy sauce. If that’s really how copyright in the EU works then it’s no wonder we now have gems like articles 15 and 17. Soon it will be impossible to take photos in public anywhere in Europe without paying royalties. Next EU border agents will start confiscating tourists’ cameras at the airport and hold them for royalty ransom.

Anonymous Anonymous Coward (profile) says:

Re: Re: Location matters, though...

There is an anecdotal tale my father used to tell about his visit to a business colleague/friend in Paris. This had to have been in the early 1960’s. The friend used to pretend to push a button at the dinner table at the exact moment the Eiffel Tower’s lights came on, suggesting that he did it.

Those must be new lights.

Lisa Westveld (profile) says:

Re: Re: Re: Location matters, though...

Well, the rule in Europe is that it lasts the lifetime of it’s creator plus 70 years. The creator of these lights is still alive even though the creator of the tower died in 1923. The lights were installed in 1985, although the tower did have lighting before. Just not the artistic lights it has since 1985.

Scary Devil Monastery (profile) says:

Re: Re: Location matters, though...

"Soon it will be impossible to take photos in public anywhere in Europe without paying royalties. Next EU border agents will start confiscating tourists’ cameras at the airport and hold them for royalty ransom."

Ironic, isn’t it, that the information control we used to lament about totalitarian regimes back before the soviet union fell, has now become accepted western practice?

Copyright is basically what happens when censorship gets a makeover and ends up in private hands.

Scary Devil Monastery (profile) says:

Re: Location matters, though...

"This means that you can’t take pictures of the Eiffel tower at night when the lights are on without paying royalties!
Problem is that Mercedes has paid royalties before in similar situations so I don’t understand why they didn’t this time. I doubt it’s fair use as it is used to promote their own product in a commercial way so I agree with the artists: Mercedes has to cough up royalties…"

That’s actually a clear demonstration of how copyright law is completely unreasonable to begin with. What we all condemned the soviet union for is now the law of the land in the "free" west when the information control is private rather than governmental in nature.

cpt kangarooski says:

Re: Re:

That’s the 5 Pointz case. Although the graffiti writers had permission in that case, there is nothing in the statute that requires it. The only key issue is whether the work is of recognized stature.

This case has some similarities to Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000), but those were sculptures and that’s a key distinction. In this case, sculptures that were attached to a building were in some scenes in Batman Forever, and the court held that the exceptions for architectural works being reproduced applied so that the movie was in the right.

Anonymous Coward says:

IF someone puts art in plain view on a wall in public, they should expect people to take photos,
In an age when everyone with a phone has a camera .
Also its not as if someone took a photo of the whole mural
and claimed its my art or its sponsored by my company.
IF all photos in a public place with buildings or statues or signs
in a background are not fair use then it will be a great threat on
free expression .
Many movies have statues and famous buildings in the background
.Everything has limits ,even copyright ,
it cannot erase free speech or the right of the public to take photo,s
outside on the streets .
it would be hard to make a film in New york City without having some neon signs
and billboards in the background .
if Some company had an ad in a magazine or on website which featured
the full mural filling saying 90 per cent of the image or the ad
then i understand the artist might have cause to complain or ask for
some payment.

That Anonymous Coward (profile) says:

Fair Use is only easy to spot when it benefits a corporation.

Perhaps if various corporations hadn’t sued other corporations because their logo was incidentally seen in a camera shot of a real place we would have a cleaner understanding of this.

But then I’ve seen documentaries on PBS where they spent untold money & effort to make sure to blur out every logo from real places to avoid these sorts of lawsuits.

Perhaps we should ask the Mercedes lawyers what would happen if someone snapped a picture of their mural & a Mercedes happened to be driving by if the artist made money from that photo… but then I like watching heads explode like in ‘Scanners’.

sumgai (profile) says:

EU, eh...

Though it’s now a few hours after her last missive, I’d like to point out to one and all (the one being Lisa Westveld) that Mercedes is not an EU corporation, per se. In fact Mercedes-Benz is an EU corp., but Mercedes Benz USA is not – the only thing tying them together, business-wise, is the name.

Look it up – MBUSA is headquartered in Atlanta, GA. (formerly for some years in New Jersey), and that started shortly after WWI (not WWII). I’ve been driving a Mercedes for the past 12 years, and it was made in good ol’ Alabama, down to the last part and piece. (Though some sub-assemblies are undoubtedly made off-shore, MBUSA isn’t talking about which ones, nor the total percentage of such, per vehicle.)

As to the copyright arguments, I’ll leave her (you, if you’re reading this, Lisa) to guess why that opinion of "ownership first, money to follow’ is not only quite unpopular, but just plain wrong in the eyes of both statutory and case law. Determing the wherewithal of that is an exercise best left to the reader (you, Lisa).

sumgai

Lisa Westveld (profile) says:

Re: EU, eh...

All I do is point out copyright in Europe, which is reasonably similar to copyright in the US, with the exception of fair use. If the murals were in Europe then Mercedes would be in trouble no matter where they were located or where they published those pictures. But the murals are in Detroit so European laws won’t apply.
But as the laws are similar, the only way for Mercedes to avoid trouble is claiming fair use.
Actually, there’s also the "Freedom of panorama" laws in many nations that could save Mercedes, except that the US is a bit more strict in this regard than most European countries. Only France and Italy don’t allow a freedom of panorama. But in the Netherlands, they could have used that excuse instead of fair use and get away with it.
In the US, you are free to make pictures of buildings but not of art. These murals are art, even though they are on buildings. Because of that, it’s not covered by the freedom of panorama in the US. In France, they might not even be allowed to photograph the building.

Anonymous Coward says:

No one buys a car because of a mural in the background of an ad,
Mercedes sells car,s , if an ad features cars driving in a a city
theres bound to be art or signs featured in the images .There,s millions of people posting images on instragram, are they supposed to pay every artist
whose art happens to be in a public place where they take photo,s .
I,m not a lawyer but i think its likely to be fair use if art is in public and
only part of it is shown in an ad.
IF you put your art in a public place you cant just expect to get paid from anyone who takes a photo of it that shows part of it ,in the background .

Tin-Foil-Hat says:

Public Place

So basically I have to make sure, when I’m out walking around, that I don’t take photos of artwork in the pubic space I am in?

I don’t think artists are entitled to anything in this situation. They get free recognition/advertising for their work whether the public likes it or not. Get your art out of our PUBLIC space if you have a probem with it.

Lisa Westveld (profile) says:

Re: Re:

Why would it have to be removed just so someone can make a picture of the building? What if the restaurant owner doesn’t want the mural to be removed as it would limit people from photographing his business?
If the graffiti wasn’t approved then it would be no problem to just paint over it and send the bill to the artist. But in this case, I think the artist did have permission.
Personally, I think photography tends to invade people’s privacy and can be questionable if people are allowed to photograph anything they like and publish the pictures for profit. It’s disrespectful, at least.

Anonymous Coward says:

Re: Re: Re:

Why would it have to be removed just so someone can make a picture of the building? What if the restaurant owner doesn’t want the mural to be removed as it would limit people from photographing his business?

Why should an individual be able to restrict the legal activities that anybody can carry out in a public space? You logic leads to privatisation of public spaces by display of Logos etc.

sumgai (profile) says:

Re: Re: Re:

If the graffiti wasn’t approved …. But in this case, I think the artist did have permission.

The problem here is one of definition. Permission is not, repeat: NOT the same as a commercial transaction. If a building owner grants permission to someone to apply a rattle-can to his vertical surface, then that was a "friendly" agreement – no cash changed hands. Importantly, the building owner had no say in what images might be presented on his vertical surface. Remember that, it’ll be important later on.

We (as in, those of use in the USA) all agree that if cash changed hands, then the works performed, regardless of what’s depicted, become the property of the vertical surface’s owner, and not that of the rattle-can handler. That’s settled case law. (Execpting those few contracts that spell out specific ownership rights. But those are few and far between.)

Now, as to "invasion of privacy", you’re asking for a world of hurt. For starters, Getty Images and Shutterstock would both be out on the street if your dreams came true. If you think that it’s questionable that people in public can be photographed for profit, then you’re espousing a "permission culture", and that’s what the framers of our Constitution were attempting to forestall with their epistle on copyrights (and patents). They did see the wreckage wrought by royalty all over Europe at the time, as those worthies issued "patents" that prevented free (as in open competition) commerce. Our founders knew that wasn’t the way to grow and prosper.

And finally…. Disrespectful? Really?? You want to substitute SJW "feels" for the societal good? Good Gawd, I’m speechless. My hat’s off to you – not very many people who can do that to me.

sumgai

nasch (profile) says:

Re: Re: Re: Re:

We (as in, those of use in the USA) all agree that if cash changed hands, then the works performed, regardless of what’s depicted, become the property of the vertical surface’s owner, and not that of the rattle-can handler.

I don’t think that’s correct. A work for hire is generally created by an employee, not a commissioned artist:

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

https://www.law.cornell.edu/uscode/text/17/101

In this case it’s almost certain the artist still holds the copyright.

Anonymous Coward says:

The question here isn’t just about murals; it’s about what public objects are too "notable" to be used as fair use. The artists here claim their mural cannot be used in anything commercial without giving them a fat wad of cash; does this extend to statues? Buildings? Does Mercedes-Benz have to pay architects whenever their car advertisements drive past buildings because the building design is copyrighted?

Obviously there has to be a limit; a car is an object designed to be driven in public spaces, thus it’s not unreasonable for a car and promotional material to depict a car shown in spaces where it could reasonably appear. One Instagram post showing their car in an alley with an abstract, gaudy "mural" does not a copyright infringement make. It would be like expecting the restaurant to be paid a fee for their name appearing in the advertisement, even though it is unrelated and clearly in no way involved in Mercedes’ promotion, is clearly not being implied to endorce Mercedes, etc.

Lisa Westveld (profile) says:

Re: Re:

There’s the freedom of panorama that applies to buildings and statues are considered buildings for this purpose. But not paintings. This means the Charging Bull on Wall Street can be used in pictures but a painting of the same statue on a wall could not!
Also, it is possible for copyrights being violated yet the artist might not care. For example, movie posters are very popular yet they are copyright protected! But theatres and moviemakers don’t mind those posters being spread around.
But with these murals, the authors started to protest. One of the reasons is because Mercedes has paid before for the use of this kind of art in their advertisements. So, why not now?

That One Guy (profile) says:

... brilliant

Rather than taking advantage of the fact that their work was on a widely seen ad and using that for attention and possibly money in other ways, they let their greed get the best of them and ensured that people and companies will do their best to never show any of their work.

A mix of funny and sad how incredibly stupid some people can get when money might be on the line.

sumgai (profile) says:

Re: ... brilliant

…they let their greed get the best of them and ensured that people and companies will do their best to never show any of their work.

These are the people who keep reading the book "How To Up Your Game" by Barbra Streisand, and keep expecting a different result.

A mix of funny and sad how incredibly stupid some people can get when money might be on the line.

Yeah, the world is fast filling up with people who are just about to grab the brass ring, and instead they literally face-plant right off of the merry-go-round horse.

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