Tuesday, September 10, 2019

Mercedes-Benz argues in federal lawsuit it has right to use Detroit street art in ads

Posted By on Tue, Sep 10, 2019 at 12:04 PM

click to enlarge One of the murals that was prominently used without permission in the backdrop of a Mercedes-Benz ad. - STEVE NEAVLING
  • Steve Neavling
  • One of the murals that was prominently used without permission in the backdrop of a Mercedes-Benz ad.

Mercedes-Benz argued in a federal lawsuit that it has the right to prominently display colorful murals in the backdrop of advertisements for one of its vehicles. Judge Avern Cohn heard the case on Monday at Theodore Levin United States Courthouse in Detroit.

At issue were now-deleted photos on Instagram showing the Mercedes G 500 driving past murals in Detroit's Eastern Market, originally created for the annual Murals in the Market festival.

Four artists whose murals appeared in the photographs — Daniel Bombardier, Maxx Gramajo, James "Dabls" Lewis, and Jeff Soto — threatened to sue the German automaker for copyright infringement. They said they weren’t consulted about the use of their murals in the photographs or compensated.

Mercedes-Benz asked the U.S. District Court for the Eastern District of Michigan to rule that the automaker has the right to use the artwork in Instagram posts. In the meantime, the company took down the images as a courtesy.

The case seeks to answer whether street art murals deserve the safeguards of copyright laws or if companies can use outdoor art to advertise without compensating the artists.

click to enlarge Photo used to promote the Mercedes G 500. - MERCEDES-BENZ
  • Mercedes-Benz
  • Photo used to promote the Mercedes G 500.
“The importance of this case cannot be emphasized enough,” says Jeff Gluck, an attorney representing the artists. “If Mercedes is found to have no liability for their use of these murals, it would be devastating to all outdoor artwork. Artists might stop painting murals outdoors knowing that any company could take their work and exploit it against their will. Imagine companies following around mural festivals to photograph and exploit the murals right as they go up, to sell and advertise their own products, to do whatever they want, without needing to pay the artists or even ask for their permission. If courts were to adopt Mercedes' arguments, then any artwork placed on any building — thousands of important works of art — could become completely unprotected. Artists' rights are at stake here in a very real way.”

At the hearing, Judge Cohn said the murals are “works of art, and they’re entitled to protection.” He also questioned Mercedes-Benz’s lawyers about whether the agency that designed the driving path for the advertisement knew the murals would appear in the background. A lawyer stated only that photographers are always aware of every element of a photograph, including the background.

“The U.S. Copyright Act protects any original work of authorship fixed to a tangible medium of expression,” Gluck says. “Mercedes is asking the court to rule that these murals are not protected from corporations exploiting them because they were painted on buildings. Obviously we disagree with that, and so does the U.S. Copyright Act.”

Gluck says to be clear, the artists are not saying that tourists are not allowed to photograph the murals for personal use. “This is starkly different than a corporation photographing and using a mural for their own commercial purposes and financial gain,” he says.

“One of the artists sued by Mercedes, James Lewis, the founder of the African Bead Museum, is a celebrated and prolific creator who has lived and worked in Detroit for many years,” Gluck says. “It is so sad to see a company like Mercedes sink so low that they would apparently rather sue this man instead of trying to make things right with him. Not only are they saying that they don't need to compensate him for their use of his mural, but they are also seeking to have him pay their own legal fees and costs associated with their own lawsuit against him. It really is heartbreaking.”

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