Des Moines Art Festival Exec Stephen King sent me this story:
Des Moines artist Chris Williams never imagined his work would be in a Super Bowl ad, but he recently became aware that an ad by the supermarket chain Hy-Vee featured prominently his mural in a Des Moines neighborhood. Not only that, the narrator was Oprah. It was a 4 minute feature that showed his work twice. Right.
So you've got Oprah, the supermarket and original art. Who profited?
I believe you're right. Not Chris.
It’s clear that artists are sick of their creations being treated like neutral backdrops for a plethora of corporate initiatives, and they’re fighting back en masse.
Chris is suing Hy-Vee for $25,000. His story has spread way beyond Des Moines.
Learn more: https://observer.com/2019/08/chris-williams-hy-vee-oprah-advertisement-super-bowl-mural/
My husband was a photographer, he always carried "model releases" with him, to insure he had permission. Did Hy-Vee get permission? Is this copyright infringement? What do you think?
Comments
Freedom of panorama is the legal right to publish pictures of artworks, sculptures, paintings, buildings or monuments that are in public spaces, even when they are still under copyright. The crossover is going to be how important the art was to the ad. If the art was key (and not the panorama or the idea of a beautiful space in general), then the art is still protected. If the art was just used as part of a beautiful space then it's fair use.
I haven't seen the ad, so can't really comment on how important the art was to it. The point is, just because the art is very visible and is easily identifiable does not mean that it in particular is important to the ad. If publicly displayed art is incidentally included because it is background, it might be one of characteristics of being publicly displayed.
I think Larry Berman is right with both his comments.
And there's no way the company didn't notice that wall...it's why they used it. I've licensed my work to a variety of entities for as little as $1. Getting seen is important. Getting credited, even if it's in tiny print somewhere, gives you the opportunity to actually profit from it. We look up credits ALL the time to find out who created something we like.
You are correct that once the work is created it is copyrighted. But, I believe it has to be registered before you can file a lawsuit. I'm not sure of the outcome, but I do think that there is a difference between a painting hanging on a wall on a set and a mural that is on a public street. Think of the Picasso sculpture on Daley Plaza in Chicago. Millions of photographers have taken pictures of it and sold it at art fairs. I am guessing they did not get permission from Picasso's estate.
I think that if your work appears for a few seconds on tv in a commercial, or wherever, there won't be any recognition as to who is the artist. It's up to the artist to take it from there.
I had my work featured on a popular tv show. They actually built a scene around it. They purchased some pieces from me and used them in at least three episodes. One scene had my work as the focal point for several seconds. I did not get any mention nor did I expect it, but I was and am able to use the scenes for my own publicity in any way that I want.
Some different views on the copyright and model Release:
An example. The Nike symbol as a registered copyrighted symbol. Now I see a group of men hanging around. One has a Nike shirt on, with said symbol. If I take a photo of it. Blow it up, focusing the attention on the symbol. Then try to sell it at a show etc. I'm liable for suit as copyright infringement.
Now take the same example except: I take a picture of the group, where they are playing with a pile of sand. Several of them and their clothing (not all Nike) are in the shot. The focus is on the activity, not the symbol. I sell that at a show. Nike tries to sue me. I tell them to go pound sand. No infringement.
Model realease:
I see a group of people, out on a street or public space. I take the picture and then choose to sell it. n model release needed. (Might be recommended) A) I do not need their permission. B) No model release nor royalties needed. There is no expectation of privacy in public spaces. Especially when no efforts are taken to attempt privacy. Now if said person(s) were to be wearing a mask or covering and I attempt to thwart such concealment, in order to obtain the shot, we would have a different story.
Now as to the named issue with his mural... I'd be very happy to just have them put in credits for me and to allow me unlimited use of the media for marketing my work. "My beautiful Murals as admired by Oprah as seen on TV". worth a lot more than $25,000.
Probably, Larry. But I also hope he makes some hay over the publicity ...
Prediction. Their first offer will be $500 and then they'll expect to settle for $2000 or $2500.
Larry Berman
I'm thinking asking "only" $25,000 is a good idea. For that amount of money they'll probably be glad to get rid of him. If he'd asked $250,000 (and don't think that people don't often sue for much more than they think they can get) he might have more of a problem.
Also, in the case of the painting on the wall in a movie or TV program, it would have probably have been purchased from the artist at some time or other. Every now and then I see art in a magazine, and sometimes even on TV, where I know the artist and it has been a purchase.
I guess that would depend on how noted of an artist I was, lol. For me, myself, I wouldn't have asked for much - maybe $ 100 - $ 250 - certainly not $ 25,000. But the artist in question might be much more in demand and well-known. Maybe $ 25,000 is appropriate for his/her work. And, again, myself not being well known might have traded for the recognition alone - granted that they acknowledged that it was my work, and that I even knew the commercial was going to be aired so that I could take advantage of it to publicize it on my own through my personal social media connections. It seems this artist had no idea until either he saw the commercial on air or someone who knew him informed him of it. There is no benefit of exposure if the artist remains unknown.
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