The Public’s Right to Look?

By: Joshua Kaufman, Esq. © 2000

They United Farm Workers have struck again. This time it is not a strike over grapes or lettuce rather a mural. In the Mission district of San Francisco colorful murals decorate a number of public walls. The murals depict Dolores Huerta one of the co-founders of the United Farm Workers (UFW). It also contains the symbol of the United Farm Workers, its logo a black eagle, and the union’s slogan, Si Se Puede, "It can be done." Apparently Corbis the corporate Internet art dealer owned by Bill Gates has photographs of the murals and is offering them for sale online. The mural in question is a two-story likeness of Huerta and fellow UFW founder Cesar Chavez. The mural is located above the schoolyard at the Cesar Chavez Elementary School the mural is entitled, "El Leguaje Mudo del Alma" ("The Silent Language of the Soul"). The UFW is quoted as stating that, " she’s the one that has been struggling for so many years and given her whole life to struggle for the rights of farm workers to have someone else profit from that is an insult and a lie".

There are four murals at issue they are entitled: Si Se Puede!, El Lenguaje Mudo del Alma, The Five Sacred Colors of Corn and Masestrapeace. The murals took over a year to complete and were finished in 1994 with the help of 80 women volunteers. The Mission district hosts 200 murals and is estimated that San Francisco has over 500 murals scattered in the various neighborhoods of the city. Corbis sells and licenses images to public for printing or other various digital uses. Is estimated the Corbis currently as archive of 65 million images of which to 2.1 million are now available online.

The lawsuit alleges copyright infringement and a breach of trademark rights based on Corbis’ sale and licensing of digital reproductions of the various murals. The U. F. W. through its attorney states that.,. "That we are concerned that these images are going to show up in inappropriate places such as credit cards which utilized by individuals and organizations whose interests are contrary to the plaintiff in the Latino community." The San Jose Mercury News reported that representatives from Corbis have not issued a response to the charges.

There is no question that a mural is a painting and entitled to copyright protection. However, arguably anyone has the right to photograph, paint and/or reproduce a street scene. Where is the line drawn between the public’s right to capture and reproduce its environment including popular icons and protected material and an artist’s or entities’ right to protect its copyrights and trademarks. While the law protects the rights of the artist it does not do so to the such an extent that it would precluded a photographer or an artist from rendering an image of Times Square which is replete to with copyrighted materials and trademark emblazoned on signs.

In a similar vein a court recently has denied copyright protection to certain sculptural and works of visual art in a lawsuit filed against Warner Bros. resulting from their depiction in the movie, Batman Forever. In the film Warner Bros. reproduced portions of an office building known as the 801 Tower. When the office building was constructed, in the order to comply with certain city imposed zoning obligations, the developers were required to allocate part off the building development to artistic endeavors. To fulfill its obligations and developers hired the artist Andrew Leichester to provide the artistic content. The artist included four separate artistic works in the building design. A fountain, two sets of towers inside a courtyard and on Tower Street an artistic wall that represented the perimeter of the courtyard. Several of the artistic elements appeared in the movie Batman Forever which was shot with the permission of the owners of 801 Tower. The artist registered his works as sculptor works with the Copyright Office and sued Warner Bros. for copyright infringement as his consent was not sought nor was he paid any fees.

The ten years ago in the copyright law was changed to provide architects with additional protection. Before the change in the law architectural drawings were protected but not the buildings themselves. Competing developers could simply view an architectural work reproduce the exact same building as long as they did not reproduce the architect’s drawings. The creative architects were not amused. In 1990 this situation changed and unique buildings and building elements were from then on protected by the copyright law. In an attempt to balance the community’s rights and those of the architects Congress placed certain limits on architectural copyrights. One of those dealt with the right of individuals to make photocopies or drawings of architecture works if they were visible from a public place.

In this case all of the artistic elements were clearly visible from public places. The court found that since the artistic elements in question were merged into the unitary whole of the architectural work that was not conceptually separable. In the case of these stand-alone artistic elements by their nature and incorporation into the building they’ve lost their separate and distinct aspects and became one with the building. Therefore, the limitations on the copyrights of architecture works, the right to photograph, applied. Warner Bros. was allowed to include the artistic elements in its movie without risk of copyright violation. After losing in the lower court the artist appealed to the Ninth Circuit Court of Appeals which upheld the trial court.

The issues, which are represented in these two cases, are very common areas of dispute. Artists from time immemorial have reproduced their environment. Of late, however, the owners of monuments, office buildings, lighthouses, signs and even plain land are attempting to cash in on the perceived value of the reproduction rights of their physical property. They attempt to assert claims that anyone who depicts their physical property in artistic form must pay for the privilege.. To date the courts have not been very receptive to these assertions of a new form of a property right. Generally speaking an artist can reproduce a natural landscape even if it is on private property and can depict animals, buildings, skylines, seascapes even if in doing so they include copyrighted materials and trademarks. There are no "Rights of Publicity" or copyright (except as explained above) in buildings, land or animals. However, the right to reproduce is not without limitations. For example, if the buildings or landmarks are used as trademarks, (i.e. the Transamerica building in San Francisco) they may not be used as trademarks by an artist. Also their usage in an artwork can not cause a likelihood of confusion by a member of the public that there is an affiliation, association or sponsorship between the trademark owner and the artist. With more and more entities issuing licenses to artists for the reproduction of their products in artworks the line which can not be crossed becomes much less well defined as easier to cross.

While on the topic of misdesignation of association or Rights of Publicity we send our condolences to the Late Princess Di. Poor Princess may she never rest in peace? Shortly after she died the Franklin Mint began making products bearing the likeness of Diana. Her estate sued claiming violations over their rights of publicity and trademark violations. Even though the suit was tried in California a fight ensued over whether California of British law would apply. Unlike in the United States in which the rights of publicity are almost universally recognized they are not recognized in England. The determination of which law applied was pivotal in the outcome of the case. The court decided that British law should apply. As a result of this ruling on the choice of laws the estate was precluded from receiving protection under California or any other jurisdictions’ right of publicity statutes. The estate lost at the trial level and again on appeal. However, it did not give up to it also raised questions regarding trademark issues asserting that Princess Diana had acquired a trademark in her name and likeness. The estate also lost on those counts as well. While the litigation was preceding before the courts the California legislature changed its right of publicity laws. The estate then argued that the way the California law was amended in such a manner that it would now be included under its new broader reach. Initially the trial court agreed however it then reversed itself and determined that know the estate would still lose under the new law as well. The Court of Appeals upheld the trial court. After much legal maneuvering the Franklin Mint can claim a clean sweep victory in this matter. It is allowed to continue selling the Princess Diana merchandise and the final nail in the coffin, which will surely make Princess Di roll over in her grave, was a $3.1 million awarded of attorneys fees that the estate was ordered to pay to the Franklin Mint.