Mr. Falkner was commissioned to do the work, which translates to a "work for hire" project. Unless there was a written agreement that the copyright stayed with Mr. Falkner, the only permission needed -- if at all -- is from the owner of the parking garage.
I'm eager to hear a judge's decision.
11
I believe that Mr.Falkner should be paid for the work that he did. It should also be his decision for an corporation to use his work in an advertisement. In my eyes I see graffiti as an art that everyone can see and find the beauty in it. Mr.Falkner's case is not the first one, there have been others and in the future there might be more. But we can see the hard work and dedication that he put into his work and corporations should have to ask permission to use anyone's work in any advertisement. People spend their time creating graffiti that most of us see and love and its good to give recognition for the art they created.
1
They should, at the very least, told him they wanted to use it and offer a credit on the screen. He might have been happy with just the exposure. He's a recognized artist, not just some tagger.
3
Graffiti is an eyesore imposed on everyone that defaces and trashes private property. Graffiti makes neighborhoods look in decline and poverty. There was a time when graffiti was a form of rebellious expression. Now it is a worn out, tired form of expression, just like dropping down your pants is. To those who think they are making a contribution to culture: find something new and challenging. Moreover, those who spray paint buildings, the same way criminal gangs do, even with permission you do not have anything to claim as copyright since you do it on someone else's property, not your own.
1
Sure any one can include this in a photograph. But USING it in a commercial for one kind of car, or one brand of anything, is using the artist's work to make money. So using it in an ad is
just unfair, even if in some technical realm it is legal. Artists don't get much credit (at least financial) for their productions.
Sometimes, being fair supercedes everything else.
7
My money is on Team Falkner. This work of art is not an original nor permanent part of the structure and was commissioned by the owner to be legally painted onto his building. The structure is the canvas. The artist was hired to create a work of art displayed on the building, so the "architecture" argument is really weak.
And unless stated in the original contract between Falkner and the building owner that this was "work for hire", then Falkner retains copyright ownership of the work forever and any profits from displaying his work without permission will go to him, not the building owner.
6
Art that is contextualized in public spaces cannot claim the landscape and what takes place around it and in front of it in public. If it can be seen out in public, it can be used/photographed by anyone. You either charge everyone or no one. Public space has to be protected as free space.
7
The work is central to the ad. If the artist who was paid to create it did not reserve the publication rights, then the owner of the building gets the compensation since Gm used the work to create profit. If the work was incidental to the ad, such as simply seen in the background and not a focus of the ad, no one should get paid since the image was not used specifically for its content as it was here. Since GM most likely paid the building owner to use his property to generate profit, if the owner retained rights to the art then that payment would cover use of the art unless the contract stated differently.
1
@Kraktos That's not necessarily true. An artist owns the copyright to their work unless the work is created as "work for hire", which would be determined in their contract and it's pretty rare especially for an artist at his level.
3
@BrooklynDogGeek That's pretty much what I said. The artist retains rights unless the work was commissioned (which it was) and the building owner bought them (which was not disclosed).
1
Paying the artist is the right thing to do; not that this stops corporations from trying to get away with things. This is unfortunately common place these days where those with money think that artists deserve no compensation and co-opt their work since they are doing 'more important things' like making more money and 'giving' people jobs. Another case in point is Elon Musk's refusal to compensate Tom Edwards for this work (link below).
More than ever, American needs to support our artists.
https://www.theguardian.com/technology/2018/jun/27/elon-musk-farting-uni...?
3
If the "art" is illegal, GM should not be allowed to use it and the "artist"'s act should be judged under the existing law. If not illegal, then GM should be soundly sued for stealing an individuals property.
1
Recently, an "artist" who copied the Statue of Liberty was paid millions when the US Postal Service accidentally used his image of it (because it so closely resembled the original, it was almost impossible to tell the difference). It seems to me that artwork that is wholly original certainly deserves as much protection under the law.
1
I think what this highlights is the problem with groupthink.
How many editors, designers and lawyers do you suppose looked at the ad campaign before it launched? And yet no one spotted this potential liability.
Groupthink also goes a long way towards explaining GM's completely unremarkable lineup of cars.
Here's the list of vehicles they make. See if you can picture in your mind what any of them look like.
Chevrolet Bolt EV
Chevrolet Cruze
Chevrolet Sonic
Chevrolet Spark
Chevrolet Volt
Buick Verano
Chevrolet Impala
Chevrolet Malibu
Buick Regal Sportback
Buick Regal TourX
Buick LaCrosse
Buick Cascada
Chevrolet Camaro
Chevrolet Corvette Stingray
2
i am reading these comments and it's driving me a little wacky. Did you read the article? The artist was commissioned to paint the wall So why should he be arrested or it scrapped away or the other wise guy comments. Also it is graffiti ... it's graffiti art. Really people are just getting into semantics. Even if someone does classic graffiti on a wall or public spot, you can't tell the difference between something that's pleasant, colorful and takes talent, and just ink scrawled about. Co'mon.
2
Could an artist create a work in an oft photographed place and sit back and collect royalties? Spray art on the side of the Golden Gate Bridge or on the Statue of Liberty and make big money? There’s no licensure for artists just like there is none for journalist so this scheme would be open to anyone.
2
@Rick There absolutely is "licensure" for artists. It's called copyright. And the artist would only be entitled to damages if it's used in a marketing or advertising capacity i.e. for profit as happened here.
2
Yes! of course GM should pay the artist. They reproduced his work for commercial purposes. The advertising and marketing people that created the ad know this.
5
By law, whatever you write or create is yours unless you sell the rights to someone else. It doesn't matter whether the creation is in a public space or a private space. Normally, no-one objects to people photographing public art for their own pleasure. When one tries to make money from it, however, the question of artist rights, permission and royalties does arise. I would be surprised if this case were not settled on the basis of these principles.
2
If the artist was paid to create the mural it's "work for hire" and the person that paid him owns the copyright. Unless... he specifically retained the copyright.
5
Did GM pay the parking garage owner for rights to photograph the ad in its space? If the garage owner paid the artist (which he did), then depending on the contract between those two, it should be easy to tell who owns the reproduction rights. It could be the garage owner.
5
He chose to create his art in a publically accessible space, without the consent of the owner of the building or any legal contract about ownership and value. To me that means the art is in the "public domain" and he is not entitled to payment. I am only expressing my perspective as a layperson and I am not a lawyer, but I don't see how he could have a case.
2
Did you even read the article? The work was commissioned by the owner of the building along with two other graffiti artworks.
7
@Green Sangha Wrong. If you read the article you'd see he was commissioned by the owner to do the piece and paid for doing so. This obviates the argument you're making.
3
@EricR Yes, I caught that when I reread it. Still, if he was commissioned, the art belongs to the building owner, not the artist who was paid for his work.
Should the designer of the building get paid for the architectural work of art? How about the designer of that water tower work of art way in the back? What about the artist who painted the parking spot lines work of art on the ground?
I am just going to drop out a piece of my hand drawn stick figure "art" out of a window in my Times Square penthouse that I will be able to afford by suing everyone for catching it while filming or photographing there. Thats where this leads. Lawsuits like this are nonsense.
5
@John
Rest assured that the architect who designed the building was paid for his/her design services.
Rest assured that the civil engineer was also paid for his/her design services.
The commissioned mural on the exterior wall has nothing to do with that. This is about copyright infringement of artwork.
@L
If it was commissioned it was paid for
So it has everything to do with it
1
This is an interesting question over all. And it I would think it depends on all the circumstances. But right here this artist should be paid. GM is huge, they could throw the guy a few bucks. They should have contacted the artist.
2
@Doctor Woo "GM is huge, they could throw the guy a few bucks" is the wrong reason for Mr. Falkner to win. Somehow it would seem to hinge on whether or not the "art" is somehow the focus but then it all gets very subjective.
1
@Doctor Woo @Doctor Woo "GM is huge, they could throw the guy a few bucks" is the wrong reason for Mr. Falkner to win. Somehow it would seem to hinge on whether or not the "art" is somehow the focus but then it all gets very subjective.
@Catholic and Conservative ... I said it's a tough question. But that's the bottom line, that they can easily afford it
GM, pay the artist.
2
Yes he should be paid, plain and simple.
3
Hollywood used Al Capone's life story - should he be paid?
1
No. He should be arrested.
1
@Sparky Jones Artist was commissioned to do the installation. Please read the article before commenting!
6
This is a commissioned mural. Interior or exterior location is irrelevant. Clearly entitled to copyright protection; an original creative work fixed in a tangible medium. The technique used to apply the paint to the surface is irrelevant. Reproducing this mural, and for a commercial purpose, without permission from the artist is copyright infringement. He is owed a usage fee.
The photographer made no effort to identify and contact the artist. GM surely can afford to pay the artist. They simply ripped off the artist because they were too lazy to do the right thing, and they presumed he wouldn't get legal help.
This is not unsettled law. It isn't even new. It's basic copyright and licensing.
The same thing happened to my work twice. And my name was on my commissioned murals.
Shameful.
15
Sadder yet is the attention some fairly uninteresting art receives. This is pretty tepid work. But instagram dominates the spectacle economy. So, who cares in this case.
The quality of the work has absolutely nothing to do with the issue. It's whether it is legally protected and according to U.S. Copyright law anything you fix in a tangible medium is protected. How much more so is something which was intentionally commissioned and created.
1
Interesting, did the artist pay rent to the building owners for drawing on their walls.
2
@SE, the owner of the building commissioned the artwork.
11
@SE....WHAT? I am an artist. I have done commissioned work. Why would any art patron ask for rent to complete a desired commissioned mural on his own property? NONSENSE... Artists deserve recognition and respect too. Cadillac/GM is being a bully!
3
yes. next question....
4
All this obfuscation is useful to distract your vision from what I think is an epically ugly car.
3
And what of fairness?
If the creative team at GM found the graffiti art cool enough to use to promote their brand, then why wouldn't GM want to pay the artist? The sum involved is tiny compared to the return on corporate creatives that prove effective. Also a mystery, why no desire to simply propose a win / win effect by the GM creative team, say commission a custom painted car by the artist to use in a follow up promotion, thus sparing the PR team this disaster? Again the payment would be pocket change for Dm but not the artist.
Why does corporate america feel that the best way to go is always to ignore any reasonable possibility of compromise or mutual beneficial settlement and just hit hard with a big team of lawyers instead. This uniquely american stereotype of an "alpha male" response is not only risible it's economically unprofitable, and kills potential gains.
Sometimes it seems almost as if the whole country were being run by these sorts of neanderthal's in suits always seeking to stiff the little guy ... ow wait, it is.
43
Unless it is commissioned and carried out legally, graffiti is vandalism, law-breaking, criminality, etc.
Only someone wanting to monetize criminality would call graffiti art.
But then, someone put a crucifix in a glass of urine and called that art, too.
Someone will always figure out a way to con people into thinking trash is art and paying up for it.
1
@Mon Ray, it was commissioned, by the owner of the building
5
This is a complicated question.
You should not have to pay the artist when the art produced is
in a space open to the pubic and a picture of that space is the issue.
If his design was used not as part of a picture of that space but was copied and used as a piece by itself than you should have to pay.
If a video is made at a baseball game and all the sounds heard at that game are recorded and music was being played at the time and could be heard on the video would the people who made that video have to pay royalties.
I hope not.
No.
Art displayed in a public space is protected by US copyright law.
You can still enjoy looking at it.
2
@John*** no but they would have to pay for the music, and that's kind of the same as this.
I have grown intolerant of insurance companies and other advertisers using public buildings and monuments as a backdrop for their incessant pandering.
7
@wp-spectator - Insurance companies? Where did that come from? The article is about GM using a commissioned mural on a garage wall without the artists permission. Are you talking about Transamerica using the Transamerica building? Or New York Life using the New York Life building? Why the off-topic attack on insurance? BTW, the word "pandering" does not mean the same thing as "advertising".
1
It's not graffiti.
7
Everyone knows that the dog that pees on a fire hydrant owns it and the firemen need to pay the dog before they touch it. It’s simple logic by today’s enlightened thinking. It’s pointless to comment on such idiocy.
4
Given that the graffiti (sorry, but I can't bring myself to call it aerosol art) is heavily feature in the ad, of course the artist deserves to get a fee. If it had been in the background I'd feel otherwise. I have worked in TV production all my life, and for at least the past 12 years it has been common practice not to feature public graffiti, or tattoos for that matter, unless the production can afford to pay the artist. This one is a slam dunk. C'mon GM...pay the guy, you can afford it
15
By all means, pay the "artist." Then charge him for the clean up involved in removing his unsightly work from a public building. I should not be forced to witness the degradation of my public spaces by unauthorized "artists."
1
@fireweed. Did you read the article? He had the owner's permission to apply the graffiti to the building.
Graffiti can be ugly and offensive, or it can be public art. The article suggests that attitude and the law are still evolving on the issue.
9
GM should pay the artist for reproducing the work without permission. The Brooklyn case is nuts because the owner of the building has the ultimate right to do whatever he wants to do with his property. These artists sold their work to the owner and he was free to do with it as he wished. This will be overturned, no basis in law, IMHO.
5
Commercial photographers have myriad problems these days, without having to worry about whether or not the exterior of a building, in the background of some image, is protected by copyright. And while I'm naturally inclined to side with the photographer, the photo itself suggests that it is all about the art, not the building (or indeed even the Cadillac).
If this was a genuine piece of graffiti -- IE if it had been painted without permission and was subject to being overpainted or cleaned off -- I'd stick with my instinct and side with the photographer. But in this instance, Cadillac's agency and lawyers should have flagged this shot for further consideration at the very least.
This probably could've been avoided by pre-emptively approaching the snapper and offering him a six-month lease.
5
An art work that is commissioned, as this one was, is not "graffiti." Graffiti is outsider art - art for its own sake - created without commission or compensation. The piece on the side of the building is indeed art - it's just not truly graffiti even though it was created to look like graffiti.
This being said, the ownership should be easy to ascertain. Was the artist paid on a "work for hire" basis - meaning that the person who commissioned the work retains ownership and rights to reproduction of the image. Otherwise the artist retains the copyright to the image and the rights to compensation if it's reproduced. An artist can sell a work to a person or corporation, yet still retain the rights to the image.
15
@Todd Fox
A Work Made For Hire agreement is a very specific written agreement stating those words, who the copyright is owned by at the moment of creation and fixation, and signed by the author/creator. A Work Made for Hire agreement must be signed before a creative work is made. Not after.
Do not confuse this with a commission. A commission is simply a client contracting with an artist to create something specific for an agreed upon fee. As opposed to the client just buying an artistic work that already exists. Commissioning artwork is not a Work Made For Hire agreement, and does not grant the commissioning client copyright ownership of the art.
Sale and ownership of the physical artwork (property rights) is separate from the sale and ownership of the copyright of the image (intellectual property rights). Gilbert owns the mural. He owns the building (separate ownerships). He does not necessarily own the copyrights and reproduction or licensing rights to Falkner's art.
There is no such thing as "art for its own sake." Your implication is that when an artist creates a work without a commissioning client and without being paid for the work that somehow that work has no value, and/or that the artist has no intellectual property rights to the work. Or, that it is somehow "pure" art. That's garbage. All art has value; what is of no value today may have great value in the future.
1
' "If the parking structure is a ‘building,’ then that is the end of the analysis,” G.M.’s lawyers wrote.'
AND the ad campaign was 'the art of the drive'.
Please. The photographer's used this shot of the building because of the graffiti, because it is beautiful. Pay the artist, or use a blank wall. End of the analysis.
31
This should be a simple yes, of course they should.
Example from my own life working in unscripted television, we would AT MINIMUM, have to get the graffiti artist's signed "materials release", which means the "artist" gives permission to use his/her art work in the ad or TV show, etc.
Whether they are monetarily compensated is another level of negotiation BUT in this instance to not pay an artist for a commercial or advertising campaign given it's a multi-million dollar company is absurd and wrong.
That said, I hear Apple also doesn't pay regular people who let their beautiful iPhone photos be splashed on billboards across cities in the country. That's their prerogative if they give permission for no monetary compensation. But again, to me this is wrong as a practice for million and billion dollar companies.
12
This brings up so many legal considerations I'm not qualified to answer: Would a work of art that is incidentally visible in the background but not the foreground qualify, and if not how close would it have to be? Would an artwork's brief appearance qualify or would it have to be interpreted as promoting or endorsing a product or service? At what point does the artist forgo the rights to their artwork as physical property, meaning, if I buy a painting outright, under what circumtances may I use its physical presence to generate income without consulting or sharing with the artist? At what point would it be accepted that a work of art in a public space is so unavoidably visible that it would make an entire area forbidden for filming without compensation? It's an intriguing article.
3
It's surprising that GM, a large multi-billion dollar international business who thrives on visual ad campaigns, failed to do its due diligence here. The Twitter photo is dominated by the Faulkner mural, whereas the car, positioned on the lower left corner of the photo, is almost an afterthought. And the main text: "Discover the art of the drive..." clearly alludes to the mural. Case closed. (Did they outsource the ad campaign and photography and allowed it just slip by the legal department?)
25
@scpa I don't think they failed to do due dilligence. They say because it's an image of a building you can't claim copyright.
1
The handball court in Williamsburg, Brooklyn, a couple of blocks from my home, has been used for fashion shoots for years because of the giant concrete slab separating the two halves of the court. Until someone like Williams comes by and scrawls all over it, the slab is a solid block of tan paint providing a perfect backdrop for a photo. The graffiti was pure vandalism and there was no reason whatsoever the vandal should profit. As a matter of fact, it was painted over shortly thereafter. It's in a New York City playground so if anyone should be paid for the right to use the court it's the city. A commissioned work of art is a completely different thing.
And what happens if someone tags the garage mural? Who benefits then? That's also happened in Williamsburg: a building owner commissioned someone to paint a geometric design along the front of his commercial building. It was signed with the artist's name. The owner moved out but still owns the building but the original design has been partially obliterated by graffiti--though not the first artist's name. What then? There are too many factors to make snap judgments in these cases. Though I'm not inclined to favor someone wandering around with a can of paint and tagging buildings without permission and then demanding royalties.
1
Should the architects be paid?
1
Well, what about the building's architect? What about the stage director responsible for the dramatic cloudy sunset sky?
5
@Matthew
Only God was responsible for the dramatic sky No one else!
1
What difference does it make whether a commissioned work of art is made on a building or a canvas or a trashcan, for that matter? The person commissioning it pays the artist and henceforth owns the object.
The garage itself is a public building. Should any tourist snapping pix have to pay a use fee? How about GMC paying a split fee to the owner and the artist, if for no other reason than good PR?
@DanIella Walsh Here in the Midwest we have few photo shoots. However having been around two, they are no quick in and out events. A full day was taken for each one, with many assistants, art directors, photographer and assistants. There should have been no way a building owner or supervisor could have overlooked the hub-bub with a commercial shoot like this one, and not questioned what they were doing.
Having been paid, usually the owner of the canvas or bus, or building or wall, now owns the work, with the artist having agreed to do it for the fee she or he was paid, unless the contract states differently.
Now, after the fact, is no time to re-negotiate. Now, after the fact, is no time for GM's legal department to realize that they perhaps overstepped by allowing their photo shoot to take place without explicit permission from the building owner.
1
@DanIella Walsh
That is not how artistic copyright works - the purchasing of an artwork does not transfer the copyright of the image to the purchaser.
1
of course the artist should be paid! this is just sloppy site picking on gm's ad dept. a person's work is a person's work, and they should be compensated.
3
No doubt they were in the first instance. But once it’s out there in a public space, there should be no requirement for repeat payments. Their “work” is done. And, yes, it should be the same for musicians.
2
@Greg That's not even how it works currently in real life. To use a musician's copyrighted music, even after it is already produced, published, and sold to the public, you must get a license, i.e. pay the musician, again, and for each new use. This is no different, especially given that the graffiti work was commissioned and legal.
1
I hear you. I’m just opining that they should only be paid once.
This article encouraged me to walk around the neighborhood today with paint remover to scrub some "art" off our mailboxes and lamp poles.
7
This story just seems so obviously false on it's face. Graffiti is when you're doing something you shouldn't, something illegal, something without permission. When you're invited - no "commissioned" to paint something - and then it's copyrighted - that is, by any workable definition, NOT graffiti.
18
Would G.M. pursue someone who used G.M.'s logo without permission?
8
Pay the artist, or re-edit the video and remove the background. So, General Motors is just like China--stealing intellectual property, maybe they need some intellect of their own?
2
Graffiti on any public surface is mere vandalism and nothing more, forever. If it is on a canvas or commissioned, then it is junk art, and nothing more. Rebranding it is dishonest. Graffiti remains a worldwide scourge. This will only encourage it.
5
I have little patience for people who can't imagine that something might have value even if it doesn't appeal to them personally. Art, as they say, is in the eye of the beholder. It's fine that you don't like or respect some art. There is art I feel the same way about. What's not fine is your apparent inability to understand that you don't get to be the final arbiter of what is and is not art for the rest of us.
4
@Grittenhouse
Read the article. The art work was commissioned by the owner of the building. Therefore it is not "graffiti" in the common meaning of the word. Yes, the artist was paid for it, but would GM have paid for use of the building if the art weren't on it. Rightfully, a percentage of the original fee for the location should have gone to the artist. The owner of the building is just as culpable as GM in cheating the artist out of a portion of the location fee.
2
So art isn't deserving of protection simply because it doesn't suit your taste?
1
A simple review of the original contract between the artist and building owner would determine who should get paid by GM, because they should be paying someone for sure if they used it without permission. The argument that they used this building for archetcual significance is laughable. They used it for the mural.
7
@Patrick Mallek
When you buy art you are not buying the copyright of that art - you are merely buying the physical object and not the Intellectual Property.
Is there a ticket booth to drive up to the roof of that parking garage? Must each driver pay in advance to park? If the passengers in a car view the mural as they enter the elevator, is there a money box to insert payment? I think not. Good luck with the lawsuit.
2
@Quilly Gal: If the passengers in the car use a photo of the mural to make money, then they should pay. Looking or taking a photo for non-commercial use is a different kettle of fish.
@JsBx
Perhaps so. But I don't think there's a chance in court of the artist winning.
the fundamental failure of GM's argument is exposed by their own lawyers's final, central statement - as presented in their filing. There it is argued that “JOE PUBLIC should not be required to research the history of the building and hire architectural experts before he snaps a photograph.”
Well, a photographer working on assignment, with a contracted and directed agenda, taking pictures to illustrate a commercial pitch with a specific directed theme, selecting as a subject another artist's recognized (and more then sufficiently designated as such) creation and then taking a photograph of same, is by no stretch of the imagination some vague, indeed, imaginary, synechdochal “JOE PUBLIC”.
The argument fails absolutely by way of that disingenuous construction alone.
11
"Around the same time, in a similar case that hinged on a different aspect of the law, a federal judge in Brooklyn awarded $6.7 million to a group of graffiti artists who had showed their work for years at the renowned 5 Pointz complex in Queens, which was demolished to make room for luxury apartments. A jury had found that the owner who had given the artists permission to paint on his buildings was liable for destroying their work under the Visual Artists Rights Act, which protects public art of “recognized stature” created on someone else’s property."
Wow, with precedent like that, I'm surprised property owners ever hire muralists, seems like a pointless liability.
9
@MikeThe error that clearly was made in that case needs to be corrected, either through appeal or common sense having the judge throw the decision out the window.
To think that once an 'aritist' spray paints something on a building they now own and control it for perpetuity means the owner has lost control over his or her property.
3
What's wrong is the versions of the Visual Artists Rights Act that apply to art other than 'public' art. There was a push, probably back in the '90s, to elevate the ownership of an artwork above the artwork itself, that is, the artist had property rights for a painting or sculpture even if he sold the piece outright. Strictly speaking, it would be illegal for the purchaser to burn a painting he got tired of, of even to let an artwork degrade by lack of conservation.
The case in question in Queens differs only that the article refers to 'public' art.
2
even if the work wasn't commissioned, even if the work was illegally painted on a public space, the artist must be reimbursed if the project is used for commercial ends. That is not a legal opinion but a moral one. Maybe it is legal as well. I don't know.
@Dave Beemon
It is a legal question.
@Dave Beemon I think there is a moral imperative to be very, very careful indeed with how much control you grant a private individual over a public space.
This is an interesting legal question. Unfortunately, the reporter and the headline writer unfortunately muddy the issue--likely purposefully--by calling the mural "graffiti." It was a lawfully commissioned work of art on a large, flat, publicly visible surface, aka a "mural." It is not graffiti. A graffiti vandal has no rights to any royalties proceeding from his or her defacement of somebody else's property. (If ever such a payment is made, then the proceeds should immediately go to the property owner, not the vandal.)
My sense of justice tells me the muralist should receive royalties for the ad. However--for those who glibly and obtusely wish to pretend the issue is cut-and-dry--such payments do seem to conflict with the free-and-public ideology behind muralism, at least historically. The point of murals in Revolutionary Mexico, for example, was to bring art to the people in public places, to get it out of private, exclusive collections and churches. If a mural is public, meant to be freely consumed, then by definition it cannot be remunerated when viewed. Do the descendants of Frederick Law Olmsted get royalties when Central Park is used as the backdrop of a commercial, or does the Empire State Realty Trust get paid when shots of the Empire State Building are used prominently to establish the aesthetics of a Hollywood film? Why not? Where is the line between "fair use" and extensive "quoting?" The issue is not simple just because "rich corporation."
5
@The Quietist - large murals and buildings have the additional complication that it can be very difficult to keep them out of shot even if you wanted to. Especially if aiming the camera elsewhere just ends up framing another large mural or building.
A restrictively copyrighted prominent building or mural could effectively make photography in the whole area prohibitive.
1
Of COURSE the artist should be paid. What's not to understand?
I suppose you know that the album cover for one of Bob Dylan's albums, "Oh Mercy", is a photograph of a grafitti painted on the side of a building in New York City. Dylan liked the painting, and told Columbia Records that he wanted it to be the cover of his new album. Presto. Columbia Records' legal department located the artist, and went scrupulously by the book in negotiating a fair deal with the artist. I suppose being a victim of music piracy, a big record company would be more sympathetic to the plight of artists being ripped-off.
More often than not, if you LIKE something, you're gonna have to pay for it! And that's okay -nobody can afford to work for free... LEAST of all, artists!!
18
@fly what's not to understand? The implications of applying copyright to images of buildings, which would make photography all-but-impossible in urban areas.
And the artist didn't work for free. He was commissioned to make it. It doesn't even belong to him.
1
There is already a precedent in Miami where American Eagle Outfitters was sued by local artist AholSniffsGlue and he won: http://www.miaminewtimes.com/arts/free-bus-tours-in-little-haiti-july-20...
3
Should the artist get paid?
Yes. That should be a no brainor.
6
@MIMA if it's such a no-brainer, then consider the implications on urban photography generally, when you can't point a camera in any direction without getting a copyrighted image in the shot somewhere.
The reason that images of buildings are exempt from copyright claims is so that architects don't start demanding royalties every time a building ends up in a photograph.
1
It's not graffiti, it's commissioned artwork drawn on the side of a building in the style of graffiti.
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I'm baffled when I read about cases such as this one. When Gilbert commissioned the mural on his building, he could have simply put language in the contract that made clear the mural was a work made for hire. In this way, Gilbert would control the copyright in the mural, and not the artist.
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@Scott
Gilbert owns his building, and the physical mural on it. He does not own the copyright.
Smash 137, the artist, owns the copyright to his work unless he signs a Work Made For Hire agreement before creating the work, or an assignment of rights before or after creating the work. That means that the artist still retain reproduction rights to his mural.
I see no reason why the artist should not keep the copyright and reproduction rights to his work. The client wanted a mural on his building; that's what he commissioned, that's what he paid for, that's what he got. Why shouldn't the artist have the intellectual property rights to profit from licensing subsequent use of his art? It's HIS work. It's not Gilbert's work.
"Smash 137, who was commissioned four years ago by the businessman Dan Gilbert to paint a mural on the outdoor elevator shed of a 10-story parking garage"....Because Smash 137 was commissioned to paint the mural, is there not a question of who owns the art work?
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@W.A. Spitzer Absolutely! It would seem to me that the artwork is the property of the building's owner.
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From the standpoint of, not just decency but common sense, against this large corporation’s bottom line, how much would it really matter to this corporation to do the right thing by this artist? Meanwhile the lawyer’s are making bank while civil rights are being squashed. Yet again, the trend of the outrageous decision by the Supreme Court in Citizens United continues.
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Of course they should! It'a art. Pay the artist.
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How about graffiti artists get paid for their work and then the money gets placed in a fund that allows the owners of graffitied property to get any unwanted graffiti ‘art’ removed?
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@Peter K
Please reread the article: "The lawsuit, Falkner v. General Motors Company, was filed in January by Adrian Falkner, a Swiss graffiti artist better known as Smash 137,** who was commissioned four years ago by the businessman Dan Gilbert to paint a mural on the outdoor elevator shed** of a 10-story parking garage he owns in Detroit."
The artist was commissioned by the property owner to paint the mural. GM then used that artwork in a commercial without getting permission or remunerating the artist.
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@Peter K This specific grafitti artist was paid to do this work. @CadillacCanada should have asked for permission to use and paid the royalty.
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First, this isn't graffiti. It's a commissioned work of art. The property owner gave permission for the artist to paint on the walls. Grafitti, where there is no permission from the owner, is vandalism, no matter how pretty it is. Vandals should not have copyright protection for their vandalism. Because it is a commissioned work of art, it seems like it's part of the building and therefore not subject to copyright laws. Just like one could use a picture of the Chrysler Building or the Empire State Building and not have to blur out the stone carvings or the bronze embellishments that are affixed to it.
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Grafitti is traditionally vandalism, painted on old buildings, railroad cars and at time, water towers and bridges at great risk to the painter (not always an artist).
Now, however, this article talks about the artist being commissioned, brought in by the property owner, and in places called murals, rather than vandalism.
In the case of the invited artist, it clearly is their work. In the case of the water tower or the storefront which was tagged between 2:30 a.m and 4 am, it is vandalism, frequently removed at expense and trouble by the store owner.
Why again is this in court? The ad producer should have know better. Much better. What next, they'll stroll into a gallery and start snapping pictures for inspiration for their new ad campaign?
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Well said. My thoughts exactly. If commissioned, then an agreement is necessitated. If not, then the advertiser is simply catching illegal environmental damage in the camera lens. It could simply have been an agreement to ask permission without any exchange of money. It is not the Mona Lisa.
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How would an ad producer know whether the graffiti on the side of a building is "traditional" (that is vandalism in nature) rather than "current" (i.e. paid for by the property owner)? When one goes into an art gallery, one can supposed that the items placed therein constitute artistic expressions which are subject to copyright protection and are also for sale. You can't reach that conclusion when walking around a city (or a rural area) and encountering graffiti. Also, if a person were to make a movie which captures street scenes, is she or he supposed to research each piece of graffiti captured on film to make sure that each piece of graffiti has not been allowed there by the owner of each structure depicted? Finally, there are lots of ads which utilize the outsides of distinctive buildings as background (I live in Los Angeles where that is very common). Why should a graffiti artist be entitled to copyright protection/revenue but not the architect who designs the structure or even the building's hired painter who comes up with an interesting color design for its exterior walls (and, yes, in Los Angeles we also have a ton of those too).
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@Res Ipsa Loquitur, a query to the owner of the building or structure would answer your first question. In this particular instance, all GM had to do was contact the owner of the garage and ask about the graffiti on the top of the building. The owner could have told them that it was a commissioned work of art, and who the artist was.
If it is commissioned, then the artist should be paid and protected by copyright. If it is vandalism, then no.
21
Real property law and vandalism is entirely separate from copyright law. Don't confuse this with the VARA protections of the destruction of artwork.
3