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Copyright Protection for the Street Artist – How Far Does it Go?

Just last week, as I was strolling around Berkeley with my friends, we stumbled across some beautiful murals on Telegraph Avenue. Being a typical millennial who deeply endorses the ‘do it for the gram’ proverb, I asked my friends to take a photo with me in front of the street art and posted it on Instagram. Given the non-commercial nature of my post, I would more likely than not be able to claim the “fair use” defense to a copyright infringement claim. But what happens when a billion-dollar company makes use of murals in the course of an advertisement campaign?

Earlier this year, Mercedes-Benz claimed it had the right to feature street art in an Instagram post advertising its G 500 vehicle without the artists’ permission. This claim came after facing backlash from the artists of the murals featured in the Instagram campaign (HypeBeast). Although Mercedes removed the entire post, it proceeded with a lawsuit, presumably to preserve its reputation by proving that there had been no violation of any of the artists’ alleged rights. The issue at hand is whether the ad promotion on the social media platform constitutes copyright infringement.  Mercedes also filed another lawsuit based on fair use, arguing that it was “fundamentally transform[ing] the visual aesthetic and meaning” of one of the murals (Lexology).

The most interesting argument put forward by Mercedes was that the company could make use of the exemption of protection under the Architectural Works Copyright Protection Act (the “Copyright Act”), which excludes copyright protection for non-functional elements or designs of an architectural structure (The Hollywood Reporter). While not entirely novel, it is an argument with great potential in the context of copyright law and this lawsuit, Mercedes Benz USA LLC v. Lewis, could be decisive as to how much protection artists of murals on building exteriors can expect.

The legal issues raised by this incident mirror a 2016 dispute between General Motors (“GM”) and a street artist of a mural in Detroit. Importantly, while the parties did eventually settle the case, a California federal court judge denied GM’s motion for summary judgment on the artist’s copyright infringement claim (Lexology). The judge relied on Leicester v. Warner Brothers as precedent and concluded that the mural could not be considered part of an architectural work (which in the Leicester case was a parking garage) because there was “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” (Manatt). Thus, GM’s attempt to make use of the exemption of protection under the Copyright Act by arguing that it applies to a mural attached to an architectural work was unsuccessful.

The success of the Mercedes-Benz lawsuit turns on whether the exemption under the Copyright Act covers elements, such as murals, that are permanently attached to an edifice. As developments arise in this potential landmark case in copyright law, street artists all over the U.S. are almost certainly on the edge of their seats.

About the author

Ophelia is a recent law graduate from Cambridge University in the UK and is now pursuing her LL.M. with a Certificate of Specialization in Law and Technology at UC Berkeley School of Law.