For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Saturday, 23 August 2014

Not So Happy Trails As NYC Mural Artist Sues For Copyright Infringement

Murals are definitely in the IP spotlight this summer: after the Castillo case, here are two other examples of an urban artist suing a corporation for copyright infringement.  

In two separate suits, filed on August 19 in the Southern District of New York, visual artist Artist Maya Hayuk is suing fashion and accessories company Coach for copyright infringement. She is also suing Sony and pop music artist Sara Bareilles for copyright infringement. In both suits, the artist claims that defendants have reproduced and distributed, without her permission, her mural Chem Trails NYC when they used it as a backdrop for promotional pictures.
Last February, as New York City was battling one of its coldest winters ever, Maya Hayuk painted ChemTrails NYC, a mural which was approximately 60 by 20 feet, on the Houston Bowery wall. This wall stands at the corner of Houston and Bowery, on the Lower East Side, and was originally used as a ‘canvas’ by Keith Haring in the early 80’s. In 2008, the year which would have seen Haring’s 50th birthday, several artists painted a tribute to him on the wall. The Houston Bowery wall is privately owned and its owner regularly invites artists to paint on it. For her mural, Mara Hayuk painted lines of bright colors intersecting to form patterns of diamonds, with the paint sometimes dripping to cross over lines. The artist registered her work with the Copyright Office, which issued copyright registration No.VA1-173-957 on February 7. Chem Trails NYC can no longer be seen, as the wall now features another mural.
No Kat Was Harmed To Create This Picture

The first suit is Maya Hayuk v. Coach Services, Inc. and Midley Inc., no 14 CV 6668. In the complaint, plaintiff claims that Coach used Chem Trails NYCprominently in a photo shot for Coach’s Spring 2014 line of apparel, footwear and bags” without her permission. The photo shoot was a collaboration with PurseBlog, a site owned by codefendant Midley, which published an online promotional feature titled Exclusive Look at the Coach Spring Collection last spring. It showed models clutching Coach bags in fronts of several NYC murals, Chem Trails NYC among them. According to the complaint, the mural was the backdrop for five of these photographs.

Below each of the photographs was a link to an e-commerce site which allowed interested viewers to purchase the bag shown in the photograph. Defendants also used the photographs in their respective Facebook, Twitter and Instagram pages. Coach also used it on its Tumblr blog, and used the photographs to sell bags by linking them on its Facebook and Twitter page to the Coach e-commerce site page selling the bag shown in the photograph.

The second suit is Hayuk v. Sony Music Entertainment et al, 14-cv-06659. Sony is the parent company of co-defendant Epic Records, Sara Bareilles’record label. Hayuk claims that Sara Bareilles featured Chem Trails NYC as a background for promotional pictures which were used last may to advertise her new album and upcoming tour. According to the complaint the images were also used by the defendants on social media, were seen in a video filmed to promote Bareilles’tour, and one photo was featured on the Ticketmaster page selling tickets for the Bareilles’tour.


Hayuk is seeking damages, costs, award of profits earned from the use of the work and a permanent injunction to cease using Chem Trails NYC. The website promoting the Bareilles’music tour already features a modified version of the original picture and no longer reproduces Hayuk’s mural. Both complaints state that Hayuk “often licenses her artwork for use on, among other things, apparel, consumer electronics, and sporting goods.” It could thus be proven that she incurred damages because of loss of licensing revenues. The fact that the mural was meant to be ephemeral may also be salient, as the window of opportunity for the artist to profit commercially from her work was short.

Both cases are also interesting as they show how marketing is more and more visual (think Pinterest). Social media can be used to distribute images quickly and easily, even infringing ones, and their origins may be easily lost.


The source of the Sara Bareilles’ image on this page is Music marketing Tools. 

5 comments:

Anonymous said...

I have studied all the images of the mural shown at http://www.boweryboogie.com/tag/graffiti-wall/, which you link to.

I can see no place that corresponds to the section that Sara Bareilles purportedly stands in front of. None of the boweryboogie.com images shows a black angle (which encloses Sara Bareilles) consisting of perpendicular black lines, the one going right down being broken by two squares (or lozenges, depending on your orientation).

I believe that possibly the mural has been paraphrased and only has a superficial similarity to to Maya Hayuk's work.

This paraphrase is even sloppier than the original (I think fondly of Bridget Riley who works with such exquisite precision).

Kind regards,


George Brock-Nannestad

Anonymous said...

Any VARA issues?

Marie-Andree Weiss said...

@George: Thank you for your comment It is an interesting theory If you are right, the mural would nevertheless have been reproduced without authorization as it would be a rather faithful copy of the mural, including the paint-covered pebbles at its bottom.

@Anonymous : The mural could be protected under VARA, as it is a work of visual art. VARA deals with moral rights. Under VARA, artists have the right to claim authorship of a work (right of attribution) and also have the right to prevent its distortion or mutilation or other modification which would be prejudicial to the artist’s honor or reputation. They also have the right to prevent its destruction if the work is “of recognized stature.”

The right of attribution gives the author the tight to oppose the work to be attributed to somebody else. The mural was not attributed to somebody else. It has not been defaced either, at least not by the defendants. However, the mural was covered by third-party graffiti s after a while. The artist could have then technically sue the authors of the graffitis under VARA. The mural is now destroyed, but that destruction was foreseen by the artist, as she knew the mural would be displayed only for a few months.

john r walker said...

Marie
The painting behind the model does seem to be a physically different painting. In the images of the actual mural the black strips seem to have no drips of magenta red running across them, where as the in the image with Sara Bareilles there is a large drip of red over the black stripe directly above her head.

Marie-Andree Weiss said...

@John Interesting...thank you! I will follow up with the case and will post further developments...

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