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Using background artwork

April 18, 2019

Last year, Mercedes-Benz ran an advertising campaign for its G 500 series vehicles that included in the background certain murals by well known artists around Detroit, Michigan (see Mercedes Benz USA LLC v. James Lewis, 19-cv-10948, March 29, 2019, Dkt. 1 (hosted on Mega.nz)).  In response to the campaign, the mural artists sent cease and desist letters to Mercedes-Benz based on the unlawful use of their copyrighted works.  Mercedes-Benz stopped using the works in the campaign.

 

It appears the parties were having discussions, but at the end of March 2019 Mercedes-Benz in the Eastern District of Michigan sued the mural artists for a declaratory judgment that the use of their murals in its advertising campaign was permissible (see cases no 19-cv-10948, 19-cv-10949,  19-cv-10951).  Mercedes raises a number of defenses:

 

1. That its use was de minimis.

2. That its use was a fair use.

3. That the mural is exempt from protection under the Architectural Works Copyright Protection Act.

4. That it did not alter any associated copyryright management information.

 

This case has some similarities to the Cloud Gate case that recently settled, and it will be interesting to see how it is resolved.

 

Image from Dave Meier on Stocksnap.io.

 

 

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