Automakers and their ad agencies really like to show off their driving machines in action. TV commercials depict sturdy, reliable trucks hauling tons of cargo; four-wheel drive SUVs navigating treacherous terrain in extreme weather conditions; and sleek sedans traversing cityscapes of gleaming skyscrapers and trendy urban streets.
It’s on funky urban streets that automakers can sometimes steer in the wrong direction. Their advertisements often feature street scenes which may include recognizable landmarks, historic buildings, public art installations like sculptures and murals, and even distinctive graffiti. Automakers aren’t the only retailers fascinated by “street art.” Manufacturers of sports shoes and apparel also like to incorporate graffiti-like designs into their apparel and advertisements. Filming other people’s art, even when it’s in public view, can lead to copyright claims, litigation, and attorneys’ fees, not to mention potential damages. This article offers a brief roadmap to avoid such claims.
Over the past decade, at least four automakers have found themselves embroiled in copyright lawsuits for incorporating public art into their ads. (A word of warning to other retailers: American Eagle Outfitters, Coach, H&M, Marriott International, McDonald’s, Moschino, North Face and Roberto Cavali, among others, have also found themselves facing lawsuits for alleged appropriation of street art. .)
In 2011, Fiat released a TV commercial featuring Jennifer Lopez apparently walking through her old neighborhood in the Bronx, where she grew up. “This is my world,” she says in voiceover, as stereotypical Bronx scenes roll by. One of those scenes included an intersection splattered with murals created by the group calling itself “TATS Cru,” which later asserted a copyright infringement claim. Shortly after the automaker became aware of the issue, the claim was quickly settled out of court. (Incidentally, the ad was also controversial for reasons unrelated to the breached mural: JLo wasn’t actually driving the car in his old neighborhood; instead, it was being driven by a double, and JLo did the voiceover from Los Angeles. . )
In 2018, General Motors launched an advertising campaign for its Cadillac line. Titled “The Art of Driving”, the campaign featured images of Cadillac vehicles with scenes of Detroit in the background. One of these images included a large mural by a Swiss graffiti artist known professionally as “Smash 137”, who had been commissioned by a Detroit art gallery to create an exterior mural on the hangar of exterior elevator of a 10-storey car park. He sued GM for copyright infringement.
The company argued that the lawsuit should be dismissed on the grounds that the parking garage was an “architectural work”, that the mural was integrated into this structure and therefore it was permissible to use a photograph of the structure in its advertisements. After the court rejected this argument and it was clear that the lawsuit was headed for a jury trial, the lawsuit settled.
And in 2019, Mercedes-Benz USA, LLC was threatened with lawsuits by several artists who claimed Instagram photos posted by Mercedes-Benz of its luxury G 500 truck in the foreground of colorful Detroit murals infringed their copyrights. ‘author. Rather than wait to be sued, the automaker took the initiative and filed federal lawsuits in which it asked the court for a finding of non-infringement. As GM had done, Mercedes-Benz argued that the 1990 federal law that extended copyright protection to architectural designs (the Architectural Works Copyright Protection Act, or AWCPA) allowed the company to publish photographs of building exteriors visible from public spaces, notwithstanding the artwork painted on them.
The muralists filed a motion seeking a summary dismissal of the automaker’s lawsuits on several grounds, including the AWCPA’s failure to authorize the company’s copying of their artwork. Shortly after the court denied this motion, the parties reached a settlement and the lawsuits were dropped.
More recently, Volkswagen Group of America, Inc. found itself on the litigation fast track. On Nov. 11, another artist who is believed to be known for her work in a variety of media, including murals and street art, sued the automaker, along with Marvel Entertainment, over a 2018 cross-promotional ad for Audi vehicles and film. Avengers: Endgame. (Korsen v Volkswagen Group of America, Inc., Case No. 21-cv-08893 (CDCal. 2021).) Plaintiff alleges that her works have been exhibited in galleries and public spaces in the Los Angeles area and that she has worked with major clients such as Red Bull, Whole Foods and the City of Los Angeles. According to his complaint, Korsen created an original mural on 7th and Mateo streets in downtown Los Angeles (that is to say one of those gritty cityscapes mentioned at the beginning of this article). The mural can be seen prominently in the Audi/Marvel ad, which has apparently been shown widely on Audi’s official YouTube channel, Facebook Live and at the Los Angeles Auto Show, among others.
Admittedly, this plaintiff’s claim is subject to numerous challenges and defenses. For one thing, the ad was aired in 2018 and the plaintiff’s claim is subject to a three-year statute of limitations. Thus, even if the advertisement continued to run within three years of the date the complaint was filed, a substantial portion of the profits that can be attributed to the marketing campaign may well be beyond the plaintiff’s reach. Further, it appears that Complainant did not register her work with the US Copyright Office until November 2019, long after the alleged infringement began in 2018. This would mean that Complainant may not be eligible for the grant of copyright. statutory damages (which plaintiffs often choose when their actual damages or defendant’s benefits are difficult to establish) and, most importantly, recovery of attorneys’ fees. And, while the plaintiff might still be eligible for damages, she would not be entitled to compensation of up to $150,000 for each allegedly infringing photograph of her mural, as she seeks. The Copyright Act makes it clear that a copyright plaintiff can only seek one award of statutory damages for each broken workregardless of the number of infringing works.
Whether Volkswagen wins, loses or settles this dispute, one thing is certain: it will have to expend time, effort and attorney’s fees to achieve a resolution of this plaintiff’s claims. It may also receive negative publicity. Automakers and other retailers would be prudent to follow some basic steps before releasing this type of advertising to the public, potentially saving themselves such costs.
First, a proposed ad should be reviewed at the concept and/or script stage for potential third-party intellectual property issues. Second, all proposed locations for photography or filming must be properly checked for the presence of copyrighted artwork, third party trademarks, etc. Third, the creators of the marketing campaign should discuss with a qualified attorney the risks associated with filming or photographing publicly visible artwork and business signs, including: (1) the visibility of the work art or sign and its duration; (2) whether artwork/signage can or should be covered and/or replaced with approved content prior to filming, or blurred in post-production; (3) whether there is a conceivable fair use or other defense to a potential infringement claim; and (4) whether it would be prudent to contact the content/posting owner and obtain permission for the proposed use.
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