Taking the offensive, Mercedes-Benz has filed suit against four graffiti artists over the car company’s use of their street art in a social media post.
The dispute began when Mercedes obtained a permit from the city of Detroit to photograph various locations throughout the city. Mercedes commissioned photographs of its new G 500 Series truck parked and driving through the streets.
On January 26, 2018, the car company posted six photographs depicting the G 500’s journey through Detroit to its Instagram account with the following caption: “This off-road legend is always ready for some urban exploration to mix things up.”
Approximately one year after Mercedes published its post, it heard from four artists—Daniel Bombardier, James “Dabls” Lewis, Jeff Soto and Maxx Gramajo—about the background imagery in the posts. The images were part of a program called Murals in the Market Festival, aimed at improving the visual appearance of Detroit’s cityscape, and the artists accused Mercedes of copyright infringement based on the inclusion of their art in the G 500 photographs.
Mercedes removed the entire Instagram post but then filed three lawsuits in Michigan federal court, accusing the artists of continuing threats as part of an “aggressive shakedown effort” over the social media post.
The car company requested a declaratory judgment that the photographs and post did not infringe the artists’ copyrights, that the post made fair use of the art at issue, and that Mercedes had not violated any of the artists’ other alleged rights, among other issues.
Mercedes made fair use of the murals, the car company told the court in the complaint against Lewis, “fundamentally transform[ing] the visual aesthetic and meaning” of his mural. For example, the photograph is not static but an action photo that blurs the mural, making its fine details not discernable, and provides a side view (as opposed to straight on) at a steep, oblique angle, designed to draw the viewer’s focus to the car—not the mural—the company argued.
In addition, the mural is not the centerpiece of the picture, with one-third of the mural outside the frame of the picture and additional portions of it obstructed by a streetlight, a telephone pole and the G 500.
The Instagram post also may reasonably be perceived to convey a different meaning than Lewis’ mural does, Mercedes added, as the “focus and message” of the photographs is not the art but the truck driving through the city. “By contrast, [Lewis] is known for creating art that conveys stories about African culture and the human condition,” Mercedes noted, adding that the post in no way usurped the market for Lewis’ art.
Requesting a declaration that the photographs and post did not infringe on the artists’ copyrights, Mercedes also suggested that the mural was exempt from protection under the Architectural Works Copyright Protection Act, as it was integrated into the facade of a building and the Detroit cityscape.
To read the complaint in Mercedes Benz USA LLC v. Lewis, click here.
Why it matters: The facts behind Mercedes’ three declaratory judgment actions echo a 2016 case involving General Motors and the artist behind another mural created as part of Detroit’s arts program. Although that case later settled, a California federal court judge denied GM’s motion for summary judgment on the artist’s copyright infringement claim. An attorney for the four artists in the current cases issued a statement that they would fight the lawsuit, for fear that “Mercedes’s actions could intimidate artists into not wanting to make any artwork outdoors for fear that companies will use their work without permission, and we must not let that happen.”