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Another twist on copyright interests in graffiti art

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

We recently talked here about the emerging copyright question of whether graffiti can be protected creative work. In our previous post, we described a case in which a federal judge in New York decided that a graffiti artist did not have an infringement claim. Because the art was only displayed for a couple of seconds in the background of a scene in "Vinyl," a show involving Mick Jagger as a creator, the judge said the use was only de minimis, meaning so trivial and brief that it could not rise to the requirement that the use be "substantially similar" to the original work. 

That case is on appeal, and we will keep an eye on what happens to it. The trial court's decision is an interesting one to ponder because, by applying copyright analysis to the use of the graffiti, the judge in essence seemed to acknowledge that there may be instances where graffiti may have copyright protection.


The GM advertising case 

Another graffiti copyright case is pending before a federal judge in Los Angeles, according to The New York Times. The Times article talks about the change in public perception of street art as creative work. For example, it describes a copyright dispute that settled out of court in 2014 between graffiti artists and a fashion designer who used without permission components of a San Francisco graffiti mural on clothing and accessories. 

The new case involves Adrian Falkner, a respected Swiss graffiti artist whose work has been displayed in galleries. The owner of a Detroit parking ramp commissioned Falkner to create a mural on the garage wall. General Motors then used an image of the mural without the artist's permission in Cadillac ads. 

The Times reports that GM is arguing that Falkner's graffiti cannot have copyright protection because "architectural works" are exempt and that the parking ramp incorporates the mural into its status as an architectural work. In response, Falkner says that the exemption is meant to protect people who snap pictures of famous buildings. 

The Times quotes Falkner's lawyer as saying that if the court credits the GM argument, "all graffiti art that exists on a building -- that is, most graffiti art -- would suddenly be unprotected by copyright." 

The court has scheduled oral arguments in the case this month, July 2018.

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