The Law and Business of Social Media
October 09, 2019 - Advertising, Copyright, Litigation

Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim

Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim

As regular readers of Socially Aware already know, there are many potential traps for companies that use photographs or other content without authorization from the copyright owners. For example, companies have faced copyright infringement claims based on use of photos pulled from Twitter. Claims have even arisen from the common practice of embedding tweets on blogs and websites, and we have seen a flurry of stories recently about photographers suing celebrities for posting photos of themselves.

Now there is another potential source of liability: the appearance of murals in the background of photographs used in advertisements. In at least two recent cases, automotive companies have faced claims of copyright infringement from the creators of murals painted on buildings that appear in the backgrounds of ads.

Most recently, in a federal district court in the Eastern District of Michigan, Mercedes Benz sought a declaratory judgment that its photographs, taken in Detroit (with permits from the city) and later posted on Instagram, did not infringe the copyrights of three defendants whose murals appeared in the backgrounds of those photographs.

Almost exactly one year prior, a federal court in the Central District of California decided a case in which an artist, Adrian Falkner, alleged that General Motors infringed his copyright in a mural located on a parking garage. General Motors had placed a newspaper ad for a Cadillac that contained portions of the mural, along with the Detroit skyline, in the background.

Both of these cases turned largely on whether the photographs at issue qualified for application of 17 U.S.C. § 120(a), which creates an exception to the copyright protection otherwise afforded to architectural works and expressly permits making, distributing and publicly displaying pictures, paintings, photographs or other representations of architectural works if the building in which the work is embodied is located in or ordinarily visible from a public place.

Both cases also cite the Ninth Circuit’s opinion in Leicester v. Warner Brothers, which held that a pictorial, graphic or sculptural work that is “part of” an architectural work qualifies for 17 U.S.C. § 120(a). Interestingly, however, the results in the two cases diverged.

In Mercedes Benz, the Michigan district court denied the artist defendants’ motion to dismiss Mercedes’ declaratory judgment action. The court noted without explanation that Leicester supported Mercedes’ contention that the murals fell within 17 U.S.C. § 120(a), at least with respect to the particular pictorial representation of the buildings on which the murals appeared. The court distinguished the matter at hand from a case where a pictorial or graphic work is “divorced from the context of the building in which it was embodied.”

The California district court in Falkner, however, came to a somewhat different conclusion. Relying on the Ninth Circuit’s analysis in Leicester, the court found on a motion for summary judgment that it could not conclude as a matter of law that the mural was “part of” the parking garage on which it appeared because the mural was “not designed to appear as a part of the building” or serve a functional purpose related to the building, and was made separately at the discretion of the artist after the parking garage had been built. The case later settled.

These cases leave somewhat ambiguous the factors that determine whether a mural is to be considered “part of” a building, so that photographs of the mural qualify for 17 U.S.C. § 120(a) protection. Nevertheless, companies should be aware that the use of images that show murals or other works of public art, even if they only appear in the background, may face copyright claims from the owners of those works.