Graffiti and the Law of Copyright – Framed by Jennifer Lopez’s Fiat Commercial

In light of Ms. Lopez’s fame, she’s affectionately referred to by a variety of nicknames: anything from J Lo to her self-dubbed “Jenny from the Block” which she adopted in one of her songs to reference her roots and emphasize that despite all the success, she’s still just Jenny from the Bronx block where she was born and raised. 

 

Given her affection and affinity for her hometown, it was clearly a no-brainer to have Jenny show off her roots in the most recent c500 commercial, driving around and displaying the Bronx and its residents in their fully glory. The new ad “explores her personal take on how life in the New York City borough continues to inspire her to be tougher, to stay sharper and to think faster.”

 

Too bad the producers of the commercial weren’t as inspired to stay sharp and think fast . . . and from the looks of it, maybe they didn’t think at all. As soon the commercial aired in October, it met with criticism: Allegedly, Jenny couldn’t make it back to the “block” and filmed her portions of the commercial in Los Angeles, not the Bronx – relying instead on a double. Then, there were rumors that the car itself broke down during filming. 

 

But the salt in the wound came when Bronx-based graffiti artists, TATS Cru, filed suit alleging copyright infringement of the mural they painted on the side of the building located at 1165 E. 165^th street, which Lopez (or her double) drives by at the beginning of the commercial and is displayed therein for approximately 3 seconds.

 

Perhaps because the artistic medium of graffiti is often deemed illegal, it was overlooked. Admittedly TATS Cru got its start illegally tagging subway trains in the 1980s, however, the group has gone on to receive artistic acclaim and has been hired to provide numerous graffiti art pieces for major corporations including Coca-Cola and Nike.

 

 

As with any other “pictoral, graphic, and sculptural” works, graffiti murals are entitled to copyright protection (whether illegally tagged or done with permission as is the case of the mural at issue). As such, any reproduction, distribution, display or derivate work requires permission from the copyright owner. 

 

In this case, it is unclear if that was something Chrysler “overlooked,” or because the Company believed the 3 seconds of the commercial in which the mural appeared in the background constituted a fair use of the work. That said, the distinction between fair use and infringement is often unclear and not easily defined. Because there is no specific number of words, lines, or notes that may safely be taken without permission, it is often best practice to err on the side of caution and obtain permission in all but the most clear-cut situations (i.e., an exception would be made for incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the background scene of an event being reported).

 

The Copyright Act provides an exception that allows individuals to photograph, draw, or depict a building if the architectural work can be viewed from a public location. However, in this case, the mural is not part of the building or the architectural work, but rather a conceptually separable piece of work. Thus, just because it is in the public eye, does not mean it is in the public domain and can freely be taken.

 

 

J Lo and the producers of the commercial will never know if their three-second drive-by display in the commercial constitutes a fair use because the parties settled the dispute when Fiat agreed to provide the artists with a c500 to paint, which will be auctioned off for charity when complete.

 

Here’s to hoping TATS Cru doesn’t improperly incorporate any preexisting works in its rendition…