Court case seeks to clarify that photographers don't need permission to publish pictures that incidentally capture public works of art

Mercedes has asked a court to verify that a commercial photo of one of its cars driving down a street in Detroit does not violate the copyright of the artists who painted a public mural visible in the background.

The case comes after the mural artists -- Daniel Bombardier, James Dabls Lewis, Jeff Soto, and Maxx Gramajo -- made public statements accusing Mercedes of violating their copyrights a year after the photo's initial publication. Mercedes is seeking to affirm that photos that capture incidental images of public artworks are fair use (but Mercedes is not asking the court to rule on more traditional copyright infringement theories, such as whether commercial reproductions of a public artwork that feature the artwork are fair use).

They say "hard cases make bad laws" and this is one of those cases. My natural inclination is to side with the Davids (the mural artists), not the Goliath (Mercedes), but if Mercedes is found to be infringing, that sets a precedent that can be wielded against everyone, not just giant corporations (who will always be able to afford lawyers to argue their case).

I used to live on a street that backed onto a graffiti alley in San Francisco: should I be allowed to create an author photo of me standing on my fire-escape with the murals in the background without tracking down the street artists who made them? How about a news photographer who captures an image of a cop beating up a protester in a park that features a copyrighted sculpture? Read the rest