Graffiti that appeared in a photograph on the General Motors website may be protected, a California federal court judge ruled when declining to dismiss a copyright infringement lawsuit against GM.

Swiss graffiti artist Adrian Falkner (known as “Smash 137”) was commissioned by a Michigan art gallery to create an outdoor mural in 2014. Falkner created his mural on two perpendicular walls of a parking garage located at 1234 Library Street in Detroit. He was given no aesthetic to match and was not told of any function that the mural should play. Instead, he was afforded complete creative freedom and was allowed to choose where in the garage to paint his mural. The parking garage and accompanying building were already completed before Falkner started painting.

In 2016, a professional automotive photographer took several photographs of a Cadillac in front of the mural. He sent the images to GM’s advertising agency, which posted one of the photographs on GM’s social media site.

Falkner filed a copyright infringement suit against GM, and the car company moved for summary judgment, arguing that the graffiti was inseparable from the architecture of the parking garage.

GM conceded that architectural works are protected under the Copyright Act, which defines architectural work as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”

GM argued, however, that the protection is limited to specific contexts, and the statute does not protect a photograph of an architectural work. Therefore, summary judgment was appropriate, GM told the court.

Not so fast, Falkner countered. The Copyright Act also protects pictorial, graphic and sculptural (PGS) works, even those that are physically connected to an architectural work.

U.S. District Judge Stephen V. Wilson noted that he relied heavily on the 2000 decision of the U.S. Court of Appeals, Ninth Circuit in Leicester v. Warner Brothers, the only decision that previously addressed the intersection of PGS and architectural works in the context of a copyright infringement dispute. In that case, the panel concluded that the visual representations of streetwall towers and a courtyard space that were created by an artist and that briefly appeared in the film Batman Foreverdid not constitute copyright infringement.

Considering the same factors as the Ninth Circuit, however, Judge Wilson reached a different conclusion when considering the graffiti mural. The parking garage is an architectural work for purposes of the Copyright Act, but the court was unable to conclude as a matter of law that the mural was part of the parking garage.

“There is … no indication that the mural was designed to appear as part of the building or to serve a functional purpose that was related to the building,” the court wrote. “Instead, there is undisputed evidence that Plaintiff was afforded complete creative freedom with respect to the mural, and that the design of the mural was inspired by Plaintiff’s prior work. Plaintiff was not instructed that the mural should play a functional role with respect to the parking garage or that the design of the mural should match design elements of the garage. Indeed, the architecture of the parking garage and accompanying building were already complete before Plaintiff started painting.”

These facts distinguished the case from Leicester, where the streetwall towers were designed to be part of the tower and to serve a functional role of channeling foot traffic, the court explained.

In denying GM’s motion for summary judgment on the copyright infringement claim, the court was unable to hold as a matter of law that the mural was part of an architectural work or determine whether the challenged photograph was protected under the Copyright Act.

To read the order in Falkner v. General Motors LLC, click here.

Why it matters: The decision and the continuing litigation against GM provide a strong incentive for marketers to ensure that their advertising does not include any potential for copyright infringement—a possibility even with background graffiti.