Faulkner v. GM - Should Street Art Be Protected By Copyright?

Should street art fall under the same copyright laws as other forms of art? That’s the question a jury is facing in the current Falkner v. General Motors Company trial. Swedish artist Adrian Falkner (pseudonym SMASH 137) is suing General Motors for the use of his mural on the rooftop of Detroit's Z-lot as the backdrop in their 2016 campaign launching the Cadillac XT5 without his knowledge or permission. 

The mural in question was commissioned by Dan Gilbert to adorn the coveted rooftop elevator of the parking-structure-meets-art-gallery in downtown Detroit Z lot. In the lawsuit, it was stated: “That the mural is the centerpiece of the Campaign is obvious — in that it is the only creative element dressing the car.” It was also stated that GM deliberately removed the artists signature in the final images of the campaign, blatantly subverting copyright laws, and offering no compensation or notice to the artist before publication.

 

This lawsuit comes on the heels of many others of its kind. Earlier this year, Jason Williams, aka Revok entered a legal battle with H&M when one of his murals was featured in an ad for their latest line of active apparel without his consent. In his cease & desist letter, Williams outlined reasons the company should have consulted him before using his mural, including but not limited to the fact that people may get the impression that he created the piece for the sole purpose of H&M's use when in reality the parties were not affiliated in any way. In fact, the mural was not commissioned by *anyone*, which is to say, it was painted illegally. In H&M's response, they asserted "The entitlement to copyright protection is a privilege under federal law that does not extend to illegally created works." As the word got out, street artists and enthusiasts boycotted the brand, causing a swift turnaround on H&M's part. 

 

In November 2017, jurors of the Federal District Court in Brooklyn determined that street art such as graffiti is "of sufficient stature" to qualify for legal protection under intellectual property laws. The ruling resulted in a $6.7 million payout to 21 artists whose painted works had been whitewashed from the walls of 5Pointz Complex - an outdoor art park in Long Island City- by real estate developer Jerry Walkoff. While the judge agreed that Jerry was free to do as he wished with the property, he had failed to give the artists the appropriate notice that their work would be demolished, violating the Visual Artists Rights Act. 

5 Pointz Before

5 Pointz Before

5 Pointz After

5 Pointz After

There are many schools of thought when it comes to compensating for the use of street art, and since no two scenarios are the same, it can be hard to know where to stand. Public reaction to the lawsuits and rulings run the gamut between unflinching support to unbridled critique.  

Some suggest that artists and clients should sign lengthy and explicit contracts detailing who owns the art once it's complete. On one hand, it’s hard to imagine a scenario in which a large-scale commissioned work *doesn’t* come with a contract. On the other hand, while paperwork certainly clears up potential miscommunications,  it's impossible to anticipate all future outcomes, especially those dealing with 3rd party companies using art without asking permission.

The point of contracts is moot if the wall is painted illegally, though many believe that the artist should still be compensated or at very least, that companies shouldn't be able to use their work at all. Still, others think that the act of illegally painting a wall nullifies any copyright protections in itself. 

Some bring up the position of architecture - if the artist who paints the wall should be credited and paid, is the same true of the architect? What about architects in buildings seen in the background? In public spaces, the rabbit hole could be deep.

Others have determined that the artists should be flattered by the exposure that comes from having their art featured in ads by large corporations, though when the companies aren't crediting the artists (or photoshopping their signature out), it's hard to accept exposure as reasonable compensation. 

It's easy to talk oneself around in circles, arguing on either the side of the company or the artist, or neither or both. If GM paid the Z-lot owner to shoot there, would it be up to him to contact the muralist, or does he have the final say because he already paid for the piece of art in question? When it comes to art, compensation and copyright have never been cut & dry, and the status of street art in public spaces becomes even more convoluted. 

In the art world, a painting can be sold for pennies by the artist one day, then suddenly be deemed worth thousands of dollars and be sold by the purchaser while the painter wouldn’t see a cent of residuals. Whether that’s fair or not, that’s the way it is and has always been, though it appears things may be changing. 

So what do you think? Should GM offer recompense and credit to Smash 137, or was his commission from the Z-lot the only payment due for his mural? Should illegally painted murals be covered under copyright laws? Leave your opinions in the comments below.