The ruling by a federal judge in Los Angeles who rejected GM’s attempt to dismiss the suit could pave the way for other street artists to claim damages for the unauthorised reproduction of their work.
Swiss artist, Adrian Falkner, also known as SMASH 137, brought the action against GM after it used a photo featuring one of his mural works in its 2016 Cadillac ad campaign. Painted on a parking garage in Detroit in 2014, the boldly coloured graffiti art appeared in a campaign photograph used widely on social media with a 2017 Cadillac XT5 crossover parked beside it.
Falkner sued GM for damages for US$150,000 (£115,518) for wilfully infringing his copyright.
GM called on the court to dismiss the claim as the image “was not part of a larger campaign and was only posted on GM-owned social channels” including Facebook, Instagram and Twitter. The motoring giant also claimed the use of Falkner’s mural fell within an exception to copyright law, which permits photographic depictions of architectural works.
Falkner claimed that “The Art of the Drive” campaign was likely to have been viewed by millions of people on social medial channels. He submitted that the campaign was damaging to his reputation especially as he has “carefully and selectively approached any association with corporate culture and mass-market consumerism”.
Judge Steven Wilson rejected GM’s argument that its use of the mural fell within the ‘pictorial representation’ exception as it was not part of the architectural design of the parking garage. Falkner’s work had been created after the garage was completed, which distinguished his case from another copyright lawsuit filed by artist Andrew Leicester against Warner Brothers.
In that case, Leicester was unsuccessful in his claim that Warner Brothers infringed his copyright by filming the courtyard of a building housing his sculptural work for a scene in ‘Batman Forever’. The difference in that case was that Leicester’s work was designed together with the rest of the structure and so was considered part of the architectural design.
We await the ultimate judgement in the SMASH 137 case and the reverberations it may cause throughout the street art world.