Thursday, September 12, 2019

Mercedes survives motion to dismiss in street art infringement lawsuit

It involves some photos posted on Instagram that showed the defendants' murals.  (The artists are the defendants here because Mercedes brought a declaratory judgment action against them.)  Story here, including a link to the full opinion.  Background here.

The Court went out of its way to emphasize:

"Overall, Mercedes has alleged a plausible claim that section 120(a) of the AWCPA protects Mercedes' right to photograph publically visible buildings which contained defendants' murals.  Whether they will prevail on this claim is not before the Court at this time."

So what is that plausible claim exactly?  It's that murals on the exterior of a building are "part of an architectural work as elements in the [building's] design," that they are "design element[s] of the building."  I suppose that's plausible, but it seems more natural to me to say a mural is painted onto a work of architecture.  There was a similar case about a year ago (although in a completely different posture; the question was not just about the "plausibility" of the claim) which included the following language:

"There is also 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. 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."

I would guess the same is all true of the murals here, though I suppose discovery might prove otherwise.