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Driver’s License: Copyright Infringement in the World of Street Art

In January 2018, Mercedes-Benz began a marketing campaign that included photos of its cars in the Eastern Market in Detroit. The Eastern Market is home to many murals commissioned through the Murals in the Market Festival, some of which were included in the campaign.

One year later, four of the artists of these murals accused Mercedes of copyright infringement for including their work in the campaign without a license. In response, Mercedes removed the photos, but filed suit against the artists, requesting declaratory judgment that the advertisements did not infringe on the artists’ copyrights. This lawsuit is unique in that one would expect the artists to be the plaintiffs, but Mercedes claims that the artists have been making threats to the company, hoping to “expose” them and erase the revenue they’ve generated from selling the G Series truck advertised in the photos.

Mercedes’ claim for declaratory judgment relies partly the Architectural Works Copyright Protection Act, which limits copyright protection in architecture, focusing primarily on protecting the functional design of a building. They argue that the murals serve a function imputed on them through the Murals in the Market Festival and play a role in promoting tourism, economic development, and safety in the area. This shows an intention for the murals to become a part of the cityscape and therefore part of the underlying architecture.

Further, Mercedes argues that the murals are integrated into the façade of the building and that there is “absolute protection for photos of buildings”. Last year, General Motors made a similar argument, but a California federal court was not convinced the mural was part of the underlying architectural work and thereby did not grant summary judgment for GM.

Mercedes also argues that they made fair use of the murals because the murals are often blurred, obstructed, viewed from the side or at an angle, and intended to draw attention to the car rather than to the mural. They claim that these changes fundamentally transform the art in such a way that their use is not infringing on the artists’ copyright.

The message of the art has also changed, Mercedes argues. The focus and purpose of the advertisement is to show the car driving through the city, whereas the murals themselves have higher artistic purpose and individual messages that vary from piece to piece. Additionally, they argue that the advertisements did not hurt the market for the artists’ work.

The outcome of this case could significantly impact the careers of street artists. If Mercedes is successful, artists may be dissuaded from creating pieces outside for fear that their work will have fewer protections. If Mercedes does not prevail, such artists will have stronger protections and may be entitled to greater financial compensation for their work.

On September 9, Judge Avern Cohn indicated he wanted the case to move forward and would consider realigning the parties so that the artists would be the plaintiffs in their copyright infringement claims against Mercedes.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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