When I read that Mercedes is fighting with an artist over use of art in one of their ads, every instinct I have says “Pay up, Mercedes!” Of course sometimes my instincts are wrong.
This is once again at issue, as Mercedes has asked a court to make it clear that murals appearing on public walls in the background of a few promotional photos of their vehicles is fair use. This is in response to the very threatening noises made by four mural artists to their murals appearing in the background of some Instagram images. To be clear, Mercedes is suing only to ask for a court to declare images, like the following, fair use, not to attack the artists themselves.
That partial mural in the background is one of the murals in dispute by the four artists. The mural is not the focus of the photo. It’s not the subject of the photo. It’s just that Mercedes took pictures of its vehicle driving around in public and those murals are in the background, partially depicted. Whatever that is, it sure doesn’t sound like copyright infringement, and sure does sound a hell of a lot like fair use. Which is exactly what Mercedes is asking the court to declare.
I believe Mercedes is correct here. Now, if they were taking a photo of the mural, and then making commercial use of that photo specifically because the mural was in it, that would be something different. They pretty clearly aren’t doing that. It seems that they thought the street in front of the mural was a place where their SUV would look cool . (Note: nothing will ever make that SUV look cool.)
This is kind of a big deal, because we live in a world where we are all taking photos all the time, and where the places we put these photos (online!) are increasingly policed by algorithmic copyright violation detection. That should give you pause. What if you take a selfie with your BFF and put it on Facebook and it gets yanked because there’s a Coke ad in the background? What if you you make a video and put it on YouTube, but in the background a bus goes by with an ad that incorporates a stock photo that requires licensing? (Fun story: many years ago I put a video of Teddy chilling in the living room on YouTube, and got an email informing me that the music playing in the background was protected by copyright.)
If we want to have public spaces that are truly public, where we can do the ordinary things we do – including making photographic and video records of our lives – we need our intellectual property laws to respect that.
Which means, if you are an artist and you put your art on the side of building, it’s likely to be in the background of peoples’ photos and that is fine.