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.
The FBI recently raided a small gas station in Cleveland, Ohio for apparently no other reason than having a controversial mural painted on the wall.
The SWAT team, armed with rifles, handguns, and bulletproof vests, stormed through the store without showing any warrants or answering any questions about why they were there according to the store’s owner, Abe Ayad.
According to Cleveland’s NewsNet5, Ayad demanded to see a warrant from the agents, but they were never able to show him one.
Here’s some video of the raid, which apparently concluded (the video, not the raid) when FBI agents shut down the recordings.
*While this sounds entirely despicable, there is a small bit of truth underlying the depiction of a rabbi with his mouth on an infant’s penis. Here’s a description of the circumcision process, as practiced by some Orthodox members of the Jewish faith. It’s short, but says all it needs to say.
Under Jewish law, a mohel must draw blood from the circumcision wound. Most mohels do it by hand with a suction device, but some Orthodox groups use their mouth to draw blood after cutting the foreskin.
Abe Ayad “identifies” as a Muslim, which probably makes him a Muslim (distancing use of “identifies” courtesy of Cleveland.com), which probably explains why so many of his murals target Jews. That these are displayed on the outside of his business sort of makes it a civic issue. In all fairness to the city, it has never demanded a removal of the murals. It has only asked that they be made smaller and thus less visible from the road.
Ayad has refused. And if a man’s home is his castle and his licensed business his castle with an ROI, then he should — for the most part — be free to decorate it with images others might find offensive. (Obviously, actually obscene images would be another issue altogether.) Those offended are free to tell Ayad he’s a racist and a fool and spend their money elsewhere. It’s not as though Ayad is the sole provider of anything in Cleveland. But considering the issues at the center of the artwork, the city has responded in a mostly commendable fashion. There seems to be nothing approaching a heckler’s veto being humored here.
That’s the good news. Here in the US, people are free to display their irrational hatred and ignorance. If Ayad isn’t actually committing violence against Jews or imploring others to commit criminal acts, then his artwork is just a two-party wall of shame that should be pitied for its deep-held ignorance, rather than booed off the face of the planet by the offended.
Ayad also claims to have been raided by local police in 2009. He doesn’t specifically say it was because of the murals (it’s implied) but law enforcement seized money, guns and an apparently very expensive stamp collection. Most of it was subsequently returned.
“They can’t arrest me. For what?” said Ayad. “2009 they raided me too. No charges. They gave me back my guns, they kept my money and then they gave me back my money minus the coin collection, which was valued over $3 million.”
Similar items were seized in the recent raid. But this doesn’t have anything to do with the murals, even if Ayad is skewing it in that direction. Cleveland.com has, simultaneously, no details and more details.
FBI spokeswoman Vicki Anderson said agents surrounded and sealed off the East 55th Street gas station about 10 a.m. to execute a warrant.
She would not provide any other details.
Ayad, however, did.
The store’s owner, Abe Ayad, said agents were looking for evidence of food stamp fraud and illegal gun sales. Ayad said no such activity has taken place in the business.
Which is not the same thing as being raided for controversial murals. Ayad may believe this is part of a conspiracy to shut down his business and save the city from having to field more mural-related complaints, but it appears the issues at hand in this raid (and the 2009 raid as well) are unrelated to the paintings on the exterior walls.
Now, it may be possible that two raids with six years between them are both a part of a larger plan to disrupt and destroy Ayad’s business. It could be Ayad’s multiple appearances in court for civil lawsuits are also instrumental to the city’s long-term plan to be rid of his murals forever. Or it could simply be that neither of these are related to the artwork, but rather inextricably tied together because the murals on the outside can’t be separated from the interior of the business endorsing these viewpoints.
It may be that someone in Cleveland’s law enforcement community has it in for Ayad, possibly because of the murals, but there doesn’t appear to be a sustained history of harassment. While the city would undoubtedly enjoy a respite from Ayad’s “antics” and the complaints that follow them, there’s very little here to justify any claims that the FBI raided Ayad’s store over the murals. Free speech (mostly) lives here and Ayad’s contentious relationship with a great many people has yet to see his store shut down for any reason, legitimate or not.
As for Ayad not being allowed to see the warrant, that’s perfectly legal as well. Law enforcement officers are under no obligation to present the warrant before performing searches or seizures. It’s simply enough that the warrant exists and is presented to the raided party at some point during the search. A “warrantless raid” — as this has been portrayed — means the absence of a warrant, not just that the raided party wasn’t presented with a warrant before it commenced. Any number of exigent circumstances exist that allow for the presentation of a warrant after a search/seizure has already commenced. In this case, paperwork was handed over to Ayad at the time of the agents’ departure. So, while a bit on the shady side morally-speaking, the entire operation clearly falls within the legal bounds.
I’m all for a “bad cop/censorship” narrative, but one doesn’t exist here. I prefer the ones where the official parties have buried themselves, rather than grab a shovel and start hurling dirt when in possession of only a bare minimum of facts. So, score one for the good guys, I guess — pending any further details that point to the FBI being pointed in the direction of Ayad because (a) he’s Muslim and (b) he owns guns.
Here’s an idea: if a for-profit business wants to build up a little positive publicity by promoting a public health campaign utilizing a group of hip street artists, that company shouldn’t then go on the muscle bullying other art projects over something as dumb as a hashtag it has claimed to have trademarked. This is doubly so when that hashtag is something completely tangential to the company’s brand. And yet…
That’s a lesson being learned by Wat-aah, a bottled water company that enlisted street artists in a health-awareness campaign to encourage children to forsake soda for water. Some of the artists designed labels for the brand, while others painted murals or donated artwork for a recent auction to benefit the Partnership for a Healthier America. Many participated in exhibits, including one that Michelle Obama attended in February 2014 at the New Museum in Manhattan.
“It was a common-sense campaign,” said Damien Mitchell, an Australian artist who did a mural in Upper Manhattan. “I didn’t think you needed to have one, especially for water. But, here we are, in America.”
His feelings about the campaign changed in September when he learned that a lawyer for the water company sent a cease-and-desist letter to the Little Italy Street Art Project, a community group that has sponsored dozens of murals in Manhattan’s Little Italy neighborhood.
The dispute was apparently over a hashtag both the health campaign and the Little Italy Street Art Project used: #takingbackthestreets. Little Italy had been promoting itself through social media circles using the hashtag when they received the C&D claiming that said hashtag had been trademarked by Wat-aah and oh my god this world is a really stupid place. Wat-aah (sigh) claimed in its letter that because both the campaign and Little Italy’s group used murals to get across their messages, customer confusion would ensue, the sky would fall upon all of us, and all the rest. When contacted, Wat-aah (waaaaaat-aaaaaaaah!) claimed that, hey, we’re cool, man, we didn’t actually sue them or anything, so chillax, yo.
Dezmon Gilmore, a spokesman for the company, said the Taking Back the Streets campaign, sponsored by a foundation affiliated with the company, was advised to send the letter to eliminate confusion. It was not meant to be malicious, he said, but precautionary, and no further action had been taken.
Meanwhile, a pissed off Wayne Rada, the man behind the Little Italy project, is complaining that if the company had simply asked politely he would have happily stopped using the hashtag because it’s just a god damned hashtag and why are we doing this? Since getting the letter, he’s complied with the request, explaining that his art project doesn’t have enough money to go to battle with a corporation that apparently thinks it owns hashtags.
In the end, there are a great many ways to arrive at the proper behavioral decisions one should make in a given situation. Listening to trademark lawyers who tell you to go after a small art project over a hashtag with claims that are probably baseless is one moral code to live by. Me? I prefer the only single commandment worth following and I’d suggest Wat-aah follow it as well.
For all the lip service the MPAA has been paying to the claim that it loves tech innovations and wants to work with the tech industry to build cool things, why is it that every new “innovation” the industry comes up with only seems to make life complicated for people in ways that make no sense at all? For example, we recently talked about Warner Bros. ridiculous disc-to-digital offering in which people who want a digital version of movies they have on DVD can drive to a store where someone will rip the movie for them. In a world where the ability to rip your DVDs in the comfort of your own home is commonplace, that makes no sense at all.
I think we can add to this “huh?” discussion: the new effort from Fox, in which the studio will be putting up giant murals in malls to try to make it “easier” for you to buy DVDs. Here’s how it works according to Deadline.com:
As part of an exclusive one-year partnership with Twentieth Century Fox Home Entertainment, the malls will have a wall with cover art and QR codes for many the studio’s home videos. People who want to buy the movie or TV show can download a smartphone app called Fox Movie Mall, available for both iPhones and Android devices. It will enable them to scan an image and go directly to a Web site to complete the purchase for a DVD or Blu-ray disc shipped free to their home.
So, yeah. You go to a mall (physical) and download a special app (digital) which you then use to scan a silly QR code (digital) to be sent to a website (digital) to order a DVD (physical) to be shipped to your home (physical). There are a bunch of ridiculous extra steps here and I can’t figure out how any of this makes sense. If you have people in a mall already and you’re trying to get people to buy physical product, why not just let them scan and pick up the physical product? If you’re focusing on the digital components, why require a specialized app that no one’s going to want to download, and then not offer a digital version of the film?
Fox execs claim that they expect this new effort “to reach as many 60 million people over the next four months with the mall wallscapes.” I guess that depends on your interpretation of “reach.” If you mean 60 million people may walk by and ignore these murals, perhaps that’s true. Though that suggests Fox must be spending a ridiculous amount of money to get these murals pretty much everywhere. If you mean that 60 million people will actually pay any attention at all to this convoluted system to buy an obsolete product fewer and fewer people actually want, well, then someone’s done a miscalculation somewhere.
Seriously: how hard is it for folks in Hollywood to ask this simple question: “Would I ever use this product that I’m developing?” If the answer is “not in a million years” perhaps it’s time to move on to building products that consumers actually want.
Joshua Weinberg points us to a question from Rick Prelinger, questioning why the US Postal Service restricts photography of the New Deal/WPA murals that it owns. As the USPS website notes, it owns over 1,000 murals that were all commissioned by the Treasury Department between the years of 1934 and 1943. You would think, therefore, they should be in the public domain. Not quite. While you can take photos, the USPS says that photos may only be low resolution, meaning “a maximum of 72 dpi and no larger than a four-by-five-inch output to end use.” It has some other rules about not causing a disruption in Post Office facilities, which makes perfect sense, but it’s difficult to see how the other rule makes sense. I can also understand if the goal was preservation (no flash, etc.), but not restrictions on how the images can be used. The US gov’t does not own the copyright on these works, and thus it seems like they should be in the public domain. Given the USPS’s own recent troubles over someone else claiming copyright on an image used in a USPS stamp, you would think they would be sensitive to these sorts of things.