Jul 18, 2018

Artist’s lawsuit against General Motors has huge implications for copyright protection of graffiti art.

From its inception, graffiti’s legal status as art has been blurry, but a case coming before a federal judge in California later this month may help bring it into focus. In January, Swiss graffiti artist Adrian Falkner (who signs his work “SMASH 137”) filed a lawsuit against General Motors after a mural he had painted in 2014 on a Detroit parking garage was featured prominently in a 2016 advertising campaign for the Cadillac XT5 dubbed “The Art of the Drive.” GM deployed the campaign across several of its social media platforms without ever consulting Falkner or seeking his permission to do so. In their complaint, Falkner and his attorneys allege that the campaign constitutes copyright infringement and “damages [Falkner’s] reputation, especially because he has carefully and selectively approached any association with corporate culture and mass-market consumerism.”
Indeed, Falkner’s mural—which was commissioned by the owner of the parking garage—would appear to be subject to the same copyright protections as any work of contemporary art. However, late last month, GM filed a motion for summary judgment that hinges on an attempt to define the mural as a work that is incorporated into a building and thus subject to laws governing photographs of architectural works rather than artworks. “Because [Falkner’s] mural is painted onto an architectural work it falls squarely within the ‘pictorial representation exemption,” the GM motion states, referring to to code 120 of copyright statute 17. To that end, the motion concluded, “his copyright infringement claim should be dismissed.”
In their own motion opposing GM’s motion for summary judgment, filed earlier this month, Falkner and his attorneys take issue with the automaker’s “architectural work” defense. The mural, they argue, has no significant relationship to the architecture on which it was painted, which in turn has no significant architectural features. “[The mural] was conceived of after the parking structure was built, has no relationship to the architecture, and plays no functional role,” their July 2 motion states. “Its only relation to the architecture of the parking garage is that it is on an elevator shed.” The stakes of the case, which is scheduled for a hearing on July 23 in Los Angeles, are potentially very far-reaching. “Indeed, if GM’s view prevailed,” Falkner’s motion states, “all graffiti art that exists on a building—that is, most graffiti art—would suddenly be unprotected by copyright.”