District court denies defendant summary judgment on artist’s copyright infringement claim over use of photograph of artist’s mural, rejecting argument that graffiti artist’s mural on parking garage wall constitutes an architectural work subject to photograph exemption under Copyright Act.
Plaintiff Adrian Falkner, an artist known professionally by the name Smash 137, sued defendant General Motors for copyright infringement based on its use of an unauthorized photograph that included a portion of plaintiff’s graffiti mural on the automobile manufacturer’s social media accounts. An art gallery in Detroit, Michigan, commissioned Smash 137 to create the mural on a pre-existing parking garage, giving him artistic license to select where on the garage he would place his mural and what that mural would look like. In August 2016, a professional photographer took a photograph of a Cadillac and included a portion of the mural, but not the portion containing plaintiff’s pseudonymous signature. Defendant General Motors then obtained this photograph, and its advertising agency featured the photo on General Motors’ social media accounts.
General Motors moved for summary judgment on the copyright infringement claim, arguing that the mural was part of an architectural work and therefore excluded from copyright protection by 17 U.S.C. § 120(a) with respect to unauthorized photographs. This section excludes, with respect to architectural works, “the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
In conducting its analysis, the court relied heavily on the Ninth’s Circuit’s divided decision in Leicester v. Warner Brothers. In that case, the Ninth Circuit held that because certain street wall towers registered as part of a larger sculptural work had functional aspects that were designed as part of a larger building plan, the towers were part of the underlying architecture of the larger building plan and therefore subject to the same exclusions from copyright protection as architectural works. The depiction of the towers in the film “Batman Forever” was therefore not copyright infringement.
In assessing Smash 137’s claim, the court compared the mural to the aspects of the street wall towers considered by the Leicester court and ultimately concluded that, unlike those, the mural was not “part of” the parking garage and therefore was not an architectural work subject to Section 120(a)’s exclusion. The elements the court considered included whether the artistic work included concepts that were integrated into the underlying architectural work; whether the artistic work could be considered an architectural feature; and whether the artistic work was designed to appear as part of the building or served a functional purpose related to the building. The court found these factors absent with respect to the mural at issue, noting that “the architecture of the parking garage and accompanying building were already complete before Plaintiff started painting.”
The court also addressed the doctrine of “conceptual separability” as a separate basis for copyright protection — a doctrine predating Section 120(a)’s passage in 1990 — but explained that the doctrine’s continuing viability was an open issue after the Ninth Circuit’s divided opinion in Leicester. Because the court concluded that the mural was not subject to Section 120(a)’s exemption in any event, it did not assess whether conceptual separability was an alternative means of protection for the mural.
The court granted General Motors summary judgment on plaintiff’s DMCA claim, which was based on the decision by the photographer not to include the portion of the mural depicting plaintiff’s pseudonym in the picture. Noting that a claim under 17 U.S.C. § 1202(b) requires the “removal” or “alteration” of copyright management information, the court held that the framing of the photograph to exclude the signature did not satisfy this requirement, and dismissed the DMCA claim.
Finally, the court further granted General Motors summary judgment on plaintiff’s claim for punitive damages, explaining that punitive damages are not available in a statutory copyright infringement action.