By Carla Vercellone
For many years graffiti was seen as a delinquent activity and public disturbance made by outlaws of society who sprayed their work on subway cars and alleyways, hiding behind an alias while trying not to be pursued by the police. But nowadays, society’s view on graffiti has changed and it has been used by fashion labels and major corporations in their ad campaigns. Although the perception of it may be more accepting by society, the law hasn’t necessarily caught up to us just yet.
Currently, the Copyright Act (17 U.S. Code, §102(a)) protects any “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”  this includes: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic work; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
The issue when determining whether graffiti is protected under copyright has been unanswered until this year, when Central District of California Judge Stephen Wilson allowed a copyright claim by a muralist to proceed against General Motors, LLC. The case involves a Swiss mural artist based in Los Angeles, Adrian Falkner “Smash 137”, and Detroit, MI based automaker General Motors, LLC (‘GM’). Judge Wilson issued an order granting in part and denying in part the motion made by GM for summary judgment on all claims, meaning: the court granted summary judgement in favor of GM on the plaintiff’s Digital Millennium Copyright Act (DMCA) and punitive damages claims, but denied GM’s summary judgement motion on the artists’ copyright infringement claim, and therefore allowed the case to proceed to trial.
The case goes back to a complaint filed by the plaintiff in January of this year, after the artist was invited by a Detroit art gallery to paint a mural on a private parking garage as a part of a project coordinated by the gallery in 2014. In November of 2016, GM released an ad campaign called “The Art of the Drive” (Figure 2) in which it shows the Cadillac XT5 , and included a photograph of part of Falkner’s mural alongside the car. The plaintiff argued it was the only creative element part of the photograph, and thus it drew a connection between the vehicle and the mural, making the latter a part of the ad campaign by arguing that the graffiti was inseparable from the architecture of the parking garage.
As mentioned before, General Motors, LLC., filed a motion for summary judgement to dismiss all claims and it cited precedent from the U.S. Court of Appeals for the Ninth Circuit’s decision in Leicester v. Warner Brothers, 232 F.3d 1212 (9th Cir. 2000), a case about the intersection of pictorial, graphic, and sculptural works and architectural works in the context of a copyright infringement dispute. In Leicester, the Court 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 Forever did not constitute copyright infringement. But Judge Wilson’s interpretation of this precedent reached a different conclusion; although the parking garage is an architectural work under the Copyright Act, the court was unable to determine if the mural was part of the parking garage.
This case has certain factors that differentiate it from the cited precedent; the court explained that “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.” And, “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.” Whereas, in Leicester the streetwall was designed to be part of the tower and to serve the functional role of channeling foot traffic.
Street artists’ fight for copyright protection on their work has been going for years now. A famous dispute on this matter happened in 2014, when three graffiti artists — among them Jason Williams, who uses the tagging name ‘Revok’ — sued fashion designer Roberto Cavalli claiming infringement on their copyrights by borrowing parts of a mural they had painted in San Francisco’s Mission District in a line of clothes, shoes and handbags; this case was settled out of court before any judge could consider it. Graffiti artist Jason Williams, or “Revok”, has been involved in other copyright infringement cases lately; earlier this year Mr. Williams engaged in a copyright battle with clothing company H&M after the company used a mural Williams painted on a public park for one of the company’s ad campaigns. Once again, this case also settled out of court. 
By denying GM’s motion for summary judgment on the copyright infringement claim, Judge Wilson’s future decision and continuing litigation by Falkner against GM could potentially set a strong and clear precedent on whether background graffiti in advertising falls under copyright infringement, and therefore giving graffiti artists some protection under the Copyright Act.
To read Judge Wilson’s Order granting in part and denying in part defendant’s motion for summary judgment, click here.
 “17 U.S. Code § 102 – Subject Matter Of Copyright”. LII / Legal Information Institute, 2018, https://www.law.cornell.edu/uscode/text/17/102.
 Voon, Claire. “H&M Lawsuit Against Street Artist Could Change Copyright Law”. Hyperallergic, 2018, https://hyperallergic.com/432709/hm-lawsuit-street-artist-revok-copyright-law/.
- “17 U.S. Code § 102 – Subject Matter Of Copyright”. LII / Legal Information Institute, 2018, https://www.law.cornell.edu/uscode/text/17/102.
- Brachmann, Steve. “Judge Allows Copyright Claim By Mural Artist To Proceed Against General Motors – Ipwatchdog.Com | Patents & Patent Law”. Ipwatchdog.Com | Patents & Patent Law, 2018, http://www.ipwatchdog.com/2018/09/27/copyright-claim-mural-artist-general-motors/id=101584/.
- Edelstein, Jeffrey. “Full Speed Ahead For Graffiti Artist’S Suit Against GM”. Manatt, 2018, https://www.manatt.com/Insights/Newsletters/Advertising-Law/Full-Speed-Ahead-for-Graffiti-Artists-Suit-Against?utm_campaign=AdLaw%2010.4.18&utm_medium=email&utm_source=Eloqua.
- Voon, Claire. “H&M Lawsuit Against Street Artist Could Change Copyright Law”. Hyperallergic, 2018, https://hyperallergic.com/432709/hm-lawsuit-street-artist-revok-copyright-law/.