GM claims mural is an 'architectural work' in copyright infringement case

General Motors, fighting a lawsuit claiming it unlawfully used an outdoor mural on a Detroit parking garage in its advertising, contends in court documents that since the mural is painted on an "architectural work," the automaker cannot be held liable for copyright infringement.

Artist Adrian Falkner filed the federal lawsuit in January, claiming the inclusion of his mural in the automaker's marketing campaign for the Cadillac XT5 crossover infringed on his intellectual property rights. The purpose of the mural was to showcase the artwork inside a project called the "Z Garage" in Detroit, according to the lawsuit.

A hearing on the matter is set for Monday in U.S. District Court in Los Angeles.

"This right to photograph an architectural work extends to those portions of the work containing pictorial, graphic or sculptural elements," the court filing states. "Because [Falkner's] mural is painted onto an architectural work it falls squarely within the 'pictorial representation' exemption, and his copyright infringement claim should be dismissed."

Falkner also claims GM intentionally covered his signature. In response, GM claims the mural covers two perpendicular walls and the artist's signature, "Smash137," is not visible because it's located on the other wall, which is not pictured in the photograph, court documents state.

'Devastating blow'

"If the courts were to adopt the view of General Motors, it would be a devastating blow to artists’ rights and millions of important works of art could lose copyright protection," Falkner’s lawyer Jeff Gluck said in a statement emailed to Automotive News. "We are shocked that General Motors would take this position and disagree entirely with their overreaching motion."

In addition, GM claims the freelance photographer, Alex Bernstein, was not aware that the other wall contained a signature, therefore the photographer could not have knowingly adjusted or removed copyright management information.

"A lot of people think that if you take a photo from a public street or something, then whatever you shoot is fair game, which is somewhat true, I guess, for you or me," David Ludwig, of Washington, D.C., law firm Dunlap Bennett & Ludwig told Automotive News, commenting on the original lawsuit. "But if I'm in the business of using that to sell films or to use it in an ad campaign, it's kind of a different metric if you're putting it out there and showing it to the general public, so that's kind of the distinction here."

Ludwig's practice zeros in on civil litigation in the areas of patent, trademark and copyright law, among other areas.

For instance, if a mural flashes by for half a second in a movie, Ludwig explained, it's difficult for the person who painted the mural to prove it was a major reason why people watched the movie.

"The Cadillac [situation] is a little bit different because it does feature [the mural] so prominently, and it is a still image versus a video, so it's kind of right there on their website for all to see," Ludwig said. "And even if it was more in the background, if it's still a prominent piece of the ad, it's going to support a claim."

In arguments filed last week, Falkner claims that GM fails to demonstrate the parking garage is an architectural work, and even if the automaker did, the Architectural Works Copyright Protection Act does not apply to this situation because the mural "is not an integral part of the architecture."

“It wasn't created by the architect at all -- it was painted on later by a graffiti artist and I think to be architectural I think it has to be a part of the building structure and not just painted on a wall,” Ludwig said. “But that statute is not going to say that exactly, so they're trying to stretch things out a little bit.”

Unprotected graffiti?

Under the doctrine of separability, if artwork is screen-printed on, say a functional article of clothing like a sweater, the artwork is protected because it can be peeled off and reproduced in another form, Ludwig said.

"If GM's view prevailed, all graffiti art that exists on a building -- that is, most graffiti art -- would suddenly be unprotected by copyright," the memo of opposition filed on behalf of Falkner states.

Ludwig likened the legal battle to an old case where infringing music was being played in a Las Vegas casino without the artist's permission.

"The question was really, was the song the reason [people] were there, or was something else the reason they were there?" Ludwig said. "What this artist is trying to say in his case is that you're going to sell more cars, you're going to get more attention, you're going to get more interest from say, millennials or a certain age group, by featuring this, therefore you're kind of commercially benefiting from it without paying the artist, which is the problem."

GM, in a statement released Thursday, said:

“As a part of a program where Cadillac loans cars to a variety of artists to use in their work, Cadillac loaned an up-and-coming photographer a vehicle and captured a variety of images. The photographer provided Cadillac with the images with written permission to use in social media. The image was not part of a larger campaign and was only posted on GM-owned social channels.

"Cadillac is a frequent and significant supporter of artists. Cadillac’s NYC Global Headquarters itself contains Cadillac House -- a public space hosting exhibitions frequently. The brand’s active in many other realms supporting artists, designers and creators.”