Mural, Mural on the Wall – Who’s Protected After All?

By: Grace Ann Garner

Most people know the rules of copyright. An aspiring movie director would clearly not be permitted to make a movie titled Game of Thrones comprising the exact characters and plotline of the famous TV show without first getting permission from the show’s creators. The U.S. Copyright Office defines copyright as “a form of protection in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.”[1] However, the application of copyright laws have become somewhat difficult with the significant changes in technology over the past few decades. Today, it is easy to snap a photograph of a copyrighted creative work and post it on a website or sell it as a print. In most cases, the owner of the work can protect their creations from such infringement by enforcing their copyright. However, this is not so for all artists.

     One type of artist struggling to keep their work protected are urban artists who either paint wall murals or do graffiti. Under 17 U.S.C. § 120(a), all pictorial uses of creative works are privileged from copyright law if they are architectural works and if the building in which the work is embodied is “located in or ordinarily visible from a public place.”[2] Thus, a person would not face legal punishment for taking photographs and using pictorial representations of buildings visible in public places. This poses a problem for artists whose work is often done on the sides of buildings or other walls integrated within the urban landscape.

The boundaries of the architectural exemption noted above remain unclear. Recently, a Michigan federal district court grappled with the issue of whether a mural on a building was included under the architectural exemption of 17 U.S.C. 120(a). In Mercedes Benz, USA, LLC. v. Lewis, Mercedes Benz obtained a permit to photograph various locations in downtown Detroit to advertise one of its vehicles.[3] Mercedes posted the photographs, which depicted the murals in which defendants painted on the Detroit public buildings, on Instagram.[4] The defendants sent letters to Mercedes contending that its use of defendants’ murals violated copyright law, and Mercedes sought declaratory relief in response.[5] The court granted Mercedes declaratory relief, finding the company had a plausible claim that it could freely use the murals in the background of its advertisements under the legal exemption for architectural works.[6] This decision shows the limits of intellectual property protection for murals on public buildings, and it contributes to the scholastic discourse as to whether murals represent “architectural works” under the law.

In Leicester v. Warner Bros., an artist claimed copyright infringement after visual representations of streetwall towers that he had designed were included in the film Batman Forever without his permission.[7] The artist also designed a courtyard space, which was built adjacent to and concurrent with the 801 Tower used in the film.[8] Ruling for Warner Bros., the trial court found that the four streetwall towers and 801 Tower together constituted a unitary architectural work that could be pictorially reproduced freely under Section 120(a).[9] The Ninth Circuit majority agreed with the trial court, and found that the streetwall towers were part of the architectural work of the building and thus, the company had the right to include the towers in the film.[10]

In considering whether a design is “part of” an architectural work, the Ninth Circuit described relevant factors, including whether the design had an “integrated concept,” whether the design may independently be considered an “architectural [feature],” whether the design was intended to “appear as part of the building,” and whether the design “serves [a] functional purpose” related to the building.[11] The Ninth Circuit further incorporated a main policy argument in its decision:

When copyright owners in architectural works were given protection for the first time in 1990, the right was limited by § 120(a) so that publicly visible buildings could freely be photographed [and shared with the public]. This reflected a shift from the prior regime of relying on “ad hoc determinations” of fair use. Having done this, it would be counterintuitive to suppose that Congress meant to restrict pictorial copying to some, but not all of, a unitary architectural work.[12]

In contrast with the cases cited above, some courts have taken a different—and perhaps less sensible—approach to this novel question. In Falkner v. General Motors, a California district court denied a motion for partial summary judgment and found that a genuine issue was presented as to whether a mural was part of a parking garage and thus an architectural work.[13] The court distinguished the case from Leicester because there was “no indication that the mural was designed to appear as part of the parking garage or to serve a functional purpose that was related to the building.”[14] Instead, the plaintiff-artist “was afforded complete creative freedom with respect to the mural, and…the design of the mural was inspired by [the artist’s] prior work.”[15]

When contrasting Leicester and Falkner, it appears at first glance that when determining whether a design is a unitary architectural work with the building on which it was created or not, courts should inquire into the intended functionality of the design. However, with the recent decision in Mercedes Benz, at least one court has now ruled that murals on buildings are considered part of architectural works under the Section 120(a) exemption. This is the better approach considering Congress’ rationale for creating the architectural exemption.  

One of Congress’s main justifications for Section 120(a) “centers on the value created by ensuring that copyright does not limit use of pictorial representations of [public] architecture.”[16] The communicative value of pictorial representations is especially important in images of public places around the world.[17] Thus, photographers sharing visual experiences with the public should not have to get permission for every photograph they take of a public place that happens to include an artist’s work in it. If they had to get permission each time they wanted to share an image with a mural on it, this could result in a chilling effect for photographers and their desire to take pictures and share them with the world. Courts everywhere should recognize that when it comes to public buildings, people should be able to freely photograph murals or any other designs on those buildings without any legal recourse. The court’s ruling in Mercedes Benz is therefore the better approach based on the policy reasons at the heart of Congress’ decision to adopt Section 120(a).

[1] U.S. Copyright Office, Copyright in General, Copyright.gov (Oct. 11, 2019, 12:25 PM), https://www.copyright.gov/help/faq/faq-general.html.

[2] 17 U.S.C. § 120(a) (1990).

[3] Memorandum and Order Denying Defendants’ Motions To Dismiss, Mercedes Benz, USA, LLC. v. Lewis, 2019 BL 340535, E.D. Mich., No. 19-10948, 19-10949, 19-10951 (Sept. 11, 2019).

[4] Id.

[5] Id.

[6] Mercedes Benz, USA, LLC. v. Lewis, 2019 BL 340535 at *8 (E.D. Mich. 2019).

[7] Leicester v. Warner Bros., 232 F.3d 1212, 1213 (9th Cir. 2000).

[8] Id. at 1214.

[9] Id. at 1213.

[10] Id. at 1219-20.

[11] Id. at 1217-18.

[12] Id. at 1219-20 (citations omitted).

[13] Falkner v. Gen. Motors LLC, 393 F. Supp. 3d 927, 937 (C.D. Cal. 2018).

[14] Id.

[15] Id.

[16] Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works, 13 J. Intell. Prop. L. 61, 89 (2005).

[17] Id. at 91.

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