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The Eastern District of Michigan is host to the latest in a series of lawsuits brought all across the country involving an intellectual property dispute between a high-profile brand owner and street artists whose work is featured without compensation in an advertisement campaign by that brand owner. See, e.g., Mercedes Benz USA LLC v. Bombardier, Docket No. 2:19-cv-10951 (E.D. Mich. Mar 29, 2019); Mercedes Benz USA LLC v. Soto et al, Docket No. 2:19-cv-10949 (E.D. Mich. Mar 29, 2019); Mercedes Benz USA LLC v. Lewis, Docket No. 2:19-cv-10948 (E.D. Mich. Mar 29, 2019). On March 29, 2019, Mercedes Benz (Mercedes) brought three declaratory judgment actions against the artists Daniel Bombardier, Maxx Gramajo, James “Dabls” Lewis, and Jeff Soto. In each action, Mercedes is seeking a declaration of non-infringement, fair use, exemption under the Architectural Works Copyright Protection Act (AWCPA), and the Digital Millennium Copyright Act (DMCA) for its use of the artists' work. In turn, Defendants filed a motion to dismiss and a further response on May 15, 2019.
All of the claims arose from a Mercedes Instagram advertising campaign for the G-500 SUV, a luxury car. In the advertisement campaign, the SUV was juxtaposed against the murals, all of which were installed at Detroit's Eastern Market section as part of the “Murals in the Market” program. As part of that program, artists are commissioned to install works of art to enliven a public space in downtown Detroit. The murals also serve as a centerpiece for a festival that draws visitors who wish to enjoy music, tours, food, and of course, the artwork. After the ad campaign was released, the artists expressed their displeasure that a $200,000 luxury SUV was being advertised in connection with their art and that they were not compensated for the use. In response to that criticism, Mercedes argued it had obtained appropriate shoot permits from the City of Detroit to create the ad spots. It further argued that the artwork was incidentally included in the campaign, and that upon notice by the artists, it promptly removed the works as a courtesy. Mercedes further defended its actions by claiming that its use of the artwork in its campaign was transformational. The murals were partly blurred to emphasize the speed of the car, and the shots that included the artwork were focused on the car as opposed to the artwork. Furthermore, the murals were not displayed in their entirety within the advertisements. After initial discussions between the artists and Mercedes did not resolve the dispute, Mercedes initiated these cases seeking a ruling that their actions were transformational and non-infringing.
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