Artist Sues Sony Music Because Her Artwork Appears In The Background Of A Music Video

from the oh-please dept

Tue, Feb 28th 2012 10:27am — Mike Masnick

Okay, this is just getting ridiculous. Artist Maya Hayuk is suing RCA and Sony Music because a mural she painted -- and which appears to be in a public area -- appears (rather briefly) in the background of a music video by Elle Varner. You can see the video below: The colorful mural really isn't in the video that long and is hardly a central part of the video. It's just part of the background (and doesn't even show up until pretty far in). But Hayuk claims that using it in such a video without a license is infringement. We've seen plenty of other attempts to claim copyright on public artwork and it strikes us as equally ridiculous each time. If you're putting your artwork in public, it should be non-infringing if someone else happens to capture it in a photograph or video.

There's a separate factoid in the case, which is that Hayuk apparently created the original mural for a different music video, starring Rye Rye and M.I.A., which you can see below: So part of this might just be about "competing" videos both using the same mural (briefly in both cases). Though, honestly, the two videos are extremely different, and unless you're really spending much time paying attention to the walls in the background, you probably wouldn't even notice that this is the same wall. Of course, it's always entertaining when a major label gets sued for copyright infringement, but this case really just highlights how ridiculous copyright law has become these days that merely dancing in front of a wall can be considered copyright infringement. It's entirely possible that this will be found to be infringement, but any system that leads to such a conclusion has serious problems. The mural is public, and having people film a music video there is something that happens. Don't want it? Paint over the mural or put it on private property.

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Filed Under: copyright, culture, elle varner, maya hayuk, mia, mural, rye rye
Companies: rca, sony music

59 Comments

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Beta (profile), 28 Feb 2012 @ 10:33am

The question is...
Does Sony Music want to win or lose?
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- Machin Shin (profile), 28 Feb 2012 @ 10:38am
  
  Re: The question is...
  Truly a very fine point. Sony wouldn't want to help clear up any of the clouds around fair use now would they. If they try to claim fair use in this case then it makes it hard for them to sue over stupid things like this in the future.
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- Anonymous Coward, 28 Feb 2012 @ 11:27am
  
  Re: The question is...
  Sony wants to settle, of course. They have no interest in an actual outcome.
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  - Keroberos (profile), 28 Feb 2012 @ 7:38pm
    
    Re: Re: The question is...
    So does the person suing probably. They just want money, and Sony has it. Plus Sony has no real desire to fight this in court as it would most likely be cheaper to just throw some money at it to make it go away.
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  - Endtimer (profile), 28 Feb 2012 @ 10:16pm
    
    Re: Re: The question is...
    It's also lose/lose for Sony if they go to court. Either they win and set a precedent that hampers their ability to sue everyone under the sun for copyright infringement, or they lose and suddenly a flood gate opens up. Technically if this sets a precedent then even billboard advertisers could claim their 'creations' were used in the video without their concent.
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- Loki, 28 Feb 2012 @ 9:15pm
  
  Re: The question is...
  In theory they would want to lose, of course. The short term financial losses compared with the long term legal precedent would likely be too tempting to pass up. One would wonder if they would even invest much in a defense.
  
  On the other hand, given the arrogance of a company like Sony, they might not appreciate that someone would dare to use their own rules against them.
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Machin Shin (profile), 28 Feb 2012 @ 10:36am

When I see things like this I find myself just hoping it is someone suing just to make a point of how stupid the system is. I know if I had the money I would spend all my time finding little things like this to sue the trolls with. If for no other reason than to waste their lawyers time defending pointless lawsuits.

You know, give them a taste of what they love giving everyone else.
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- gorehound (profile), 28 Feb 2012 @ 10:59am
  
  Re:
  Truly a good point.It is a good idea to Sue the MAFIAA for anything you might be able to.They are very good at screwing with all of us and we should give them a taste of their own medicine.
  Suing the MAFIAA does not have to be about even winning your Case but it should be about bringing attention to their wicked ways.
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- gyffes, 28 Feb 2012 @ 12:01pm
  
  Re:
  Exactly what my first impression was. Here's hoping Sony Music isn't immune to irony.
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- illuminaut (profile), 28 Feb 2012 @ 1:36pm
  
  Re:
  I don't know if she's trolling to make a point, but I know she's going to cash in on this. This has to be one of the safest bets for getting a settlement ever. No way is Sony going to court over this. They'll pay up to avoid setting any kind of precedent that might hurt them in one of their own law suits. Pretty smart move by the artist.
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- Anonymous Coward, 29 Feb 2012 @ 1:17pm
  
  Re:
  You call it 'wasting their lawyers time' but using a lawyers time in this way is the basis on which they are paid. You can't waste someone's time if you're paying them for it.
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Gumnos (profile), 28 Feb 2012 @ 10:49am

But wait...
it's just the visual analog to audio-sampling which is clearly legal! Oh, wait. Nope, never mind. The music folks have pressed hard to demonstrate that sampling is not legal.

But it's just in the background, not the primary focus of the video! Oh, nope. Forgot about arguments in Lenz v. Universal.

Um, give me a bit more time and I can tell you why this is different from the others...oh wait, because it's the recording industry being sued, instead of doing the suing!
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kenichi tanaka, 28 Feb 2012 @ 10:49am

I'm siding with the artist on this one. Movies, TV shows, music videos, commercials ... they all have to get approval from the companies and owners whose logos appear in their film projects.

This is no different.

Sony is constantly abusing their own copyrights and trademarks but when someone else calls them on doing the same thing, everybody else blames this artist for wanting to protect her work. She deserves to get paid for her work because Sony didn't do the research to see if that "artwork" was copyrighted.

Just because it's in public view doesn't mean that Sony can film that artwork and make money from it. This is what has happened in this case.
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- Killercool (profile), 28 Feb 2012 @ 11:06am
  
  Re:
  No. They do not. I don't know how this (common) misconception happened, but in no way does anyone have to ask for permission to use a branded item in a film.
  
  The reason brands are avoided in movies and TV shows is so that it is not mistaken for product placement. Such a mistake would possibly offend viewers, and would certainly upset any company that actually did pay for product placement.
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  - Anonymous Coward, 28 Feb 2012 @ 12:12pm
    
    Re: Re:
    +5 internets for being right and then ignored by (currently) 3 people
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  - Keroberos (profile), 28 Feb 2012 @ 7:48pm
    
    Re: Re:
    No you don't need permission to use branded items in film, but most avoid it because of trademark issues not copyright. Many companies guard their trademarks rigorously, and lawsuits over them are less cut and dried then with copyright. Plus you can make money with product placement so why give that out for free?
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- Anonymous Coward, 28 Feb 2012 @ 11:09am
  
  Re:
  I agree. I would also say that, if the video happened to have this art piece in the distant background, or perhaps entered the frame just as they were strolling down the street, there might not be as much to stand on.
  
  Seeing that the chose to film directly in front of the mural, it sort of negates any chance that they can claim it wasn't intentional.
  
  Further, I have to wonder: Does an artist who makes their work available in public somehow lose their rights to it? It's not clear that the mural is on a publicly owned building.
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- PlagueSD (profile), 28 Feb 2012 @ 11:10am
  
  Re:
  I'd have to agree. If I post a home video of my vacation and it just HAPPENS to have some music playing in the background, how long do you think it'll stay up before Sony/BMG/Mafiaa take it down.
  
  This is no different than that. As posted later in this thread, this is why you see all the blurred logos on all the reality TV (crap shows imho). They don't want to pay the license fee to display the logos.
  
  On a side note, If I want to watch reality TV, I'll just look out my window. I can enjoy the view, and I don't have to deal with all the blurred logos!!
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  - The eejit (profile), 28 Feb 2012 @ 11:36am
    
    Re: Re:
    I think I need new glasses then, all the logos around me are blurred already.
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- Anonymous Coward, 28 Feb 2012 @ 11:13am
  
  Re:
  But if Sony loses, tons of people who are completely out of flavor of copyright maximization, unlike Sony, could get sue minor use of public mural in videos because of the bad ruling Sony got!
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- Anonymous Coward, 28 Feb 2012 @ 2:51pm
  
  Response to: kenichi tanaka on Feb 28th, 2012 @ 10:49am
  Wrong. This is clearly a fair use and the artist is not owed anything. The reason everyone's asking permission is that they don't want to get sued, not because there's any established law on this issue.
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  - Almost Anonymous (profile), 28 Feb 2012 @ 3:00pm
    
    Re: Response to: kenichi tanaka on Feb 28th, 2012 @ 10:49am
    Just off the cuff, I'd agree with you. But these are the companies that, as a commenter above pointed out, will pull your Youtube video of your daughter lip-synching and dancing to "their" music in a New York second. If they don't believe in fair use, why should this artist?
    
    Live by the sword, die by the sword!
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Anonymous Coward, 28 Feb 2012 @ 10:50am

Sony: You should NEVER ever EVER use someone else's work without paying license fees... except when we do it of course!
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kenichi tanaka, 28 Feb 2012 @ 10:51am

Why is it that when Sony does it that it's considered "fair use". But, if someone else does that, it's violating their copyrights.
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sophisticatedjanedoe (profile), 28 Feb 2012 @ 10:52am

He-he... not surprisingly, lawyer is a copyright troll who shakes down alleged filesharers over gay porno (Liberty Media). For example.
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- sophisticatedjanedoe (profile), 28 Feb 2012 @ 3:15pm
  
  Re:
  No surprise: Randazza defends his buddy troll and this bizarre lawsuit.
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  - That Anonymous Coward (profile), 28 Feb 2012 @ 11:43pm
    
    Re: Re:
    aww you pounced to soon, its more fun to wait for him to show up and make a post then pounce.
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Rekrul, 28 Feb 2012 @ 10:53am

This sort of copyright is ridiculous, but then again, it warms my heart to see major record labels getting hit with a frivolous copyright infringement charge of the kind that they frequently use against others.
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kenichi tanaka, 28 Feb 2012 @ 11:00am

This needs to wake up the entertainment industry so that they realize that tougher copyright laws are going to do nothing more than create problems for the entertainment industry.

I doubt that they realized that tougher copyright laws could also create potential bigger problems for the entertainment industry, as well.

Don't bite the hand that feeds you.
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- Anonymous Coward, 28 Feb 2012 @ 2:21pm
  
  Re:
  Their JOB is to create problems for the entertainment industry.
  
  It's the only feasible explanation as to why they're so stupid.
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John Doe, 28 Feb 2012 @ 11:07am

Seems reasonable to me
If a video of a baby dancing to a Prince song in the background can be taken down, why should a music video with a painting in the background be taken down?

Now of course I am against both of the above takedowns, but the more this stuff happens, the more hope I have that something will be done about overreaching copyright. Little hope that it is.
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Brent Ashley (profile), 28 Feb 2012 @ 11:08am

Au contraire, I think it's fitting that if Sony doesn't want to pay up, they should have to go through each frame and replace all incidental art with something generic, just like WKRP did for syndication. They can't have it both ways.
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Robert (profile), 28 Feb 2012 @ 11:19am

what was that...
sense of entitlement of consumers was out of hand? Just consumers or maybe some artists and a lot of label/studio folks?

Hmm..
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Anonymous Coward, 28 Feb 2012 @ 11:23am

wel, she could prove some type of intent here, she was paid/compensated/whatever to make this mural for another video, they obviously knew thids when they choose to film in front of the very same mural......
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btr1701 (profile), 28 Feb 2012 @ 11:30am

Karma
While I agree in principle with everything you said, part of me enjoys seeing these big media companies-- who have done everything they can to create this insane ownership culture-- have to deal with being sued for the very silly crap they constantly champion.
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Gracey, 28 Feb 2012 @ 11:34am

[but this case really just highlights how ridiculous copyright law has become these days that merely dancing in front of a wall can be considered copyright infringement]

Personally, I think it's the perfect way to show guys like Sony just how ridiculous THEIR abuse of copyright laws has become by "turning the screw". The shoe is on the other foot here...the irony is wonderful.
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Jeremy Lyman (profile), 28 Feb 2012 @ 11:35am

Agro-Patent Likeness
This draws parallels in my mind to the suits Monsanto brings against farmers who are not actively trying to grow seeds protected by their intellectual property rights. The seeds are just everywhere and in fact contaminate organic un-GMO production with their unwanted presence.

Some farmers just lost a preemptive suit against Monsanto, trying to have this type of accidental "infringement" declared invalid.

In a world where everything around us is Copyrighted, Patented and "owned", it will be increasingly impossible to function without incidental infringement.
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timmaguire42 (profile), 28 Feb 2012 @ 11:40am

If I ever decide to support a "loser pays" model for litigation, it'll be crap like this that leads me there. Is it too much to hope for a sweeping judgment that anything in a public space is per se fair use?
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Bengie, 28 Feb 2012 @ 11:44am

DON'T SETTLE!
Go for the throat. Each view is $150k in damages.. go go go!
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- Almost Anonymous (profile), 28 Feb 2012 @ 3:03pm
  
  Re: DON'T SETTLE!
  Better yet, each frame is $150k... lessee, that's 24 frames a second times how many seconds?
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Anonymous Coward, 28 Feb 2012 @ 11:44am

the fact that at it's sony being sued, just makes me like the one suing. 100,000,000 cuts.
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Anonymous Coward, 28 Feb 2012 @ 11:52am

Shouldn't Sony also face criminal fines for distribution of a copyrighted material as well for every download and view of that video?

However, once that happens can they then sue everyone who has a playstation in the background of a video because their logos are their artwork....
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vruz (profile), 28 Feb 2012 @ 11:53am

Are we sure the Mural is public property?
I agree 100% about the wild, rampant ridiculousness of copyright law.

However, if the wall on which this was painted is actually private property, it's an edge case.
See for example the legal grounds on which Zucotti Park protesters were evicted by the parks management.

In the current state of legal affairs I wouldn't be surprised if a maximalist concept of private property is applied too.

(For the record, I am philosophically a minimalist on these issues)
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kenichi tanaka, 28 Feb 2012 @ 12:08pm

I think you guys are under the wrong impression here.

While copyright law has become a very real problem, I don't blame the artist for suing Sony over the unauthorized use of her work. It's similar to making a movie when a resident of the city you're filming in walks by with a boombox with a song playing. Even though the studio making the movie didn't apply for the license for that music, they still have to get permission from the music studio for that music.

With the entertainment industry constantly pushing Congress for tougher copyright laws, this was bound to happen. Unfortunately, Sony got caught up in the same copyright laws they have been pushing Congress to pass.

Welcome to the world of the DMCA, SOPA, ACTA, PIPA ...
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- PaulT (profile), 28 Feb 2012 @ 2:27pm
  
  Re:
  "I don't blame the artist for suing Sony over the unauthorized use of her work"
  
  I'd agree with one of the main points above - is the mural on public property or private? If public, then sorry - the art was donated to a public space and such things don't apply. If private, then I would presume that permission was obtained to film there by the owners of the property. I'd like to think that the people renting out the property for filming would also have the rights to whatever visible features of the property would show up on film. Maybe the law isn't that sensible, though.
  
  "It's similar to making a movie when a resident of the city you're filming in walks by with a boombox with a song playing."
  
  This - especially if the music in question is only a few seconds long or in a documentary situation - is rather silly and a great example of why the laws are already out of control, even without the new laws being pushed for.
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  - Anonymous Coward, 28 Feb 2012 @ 5:32pm
    
    Re: Re:
    >This - especially if the music in question is only a few seconds long or in a documentary situation - is rather silly and a great example of why the laws are already out of control, even without the new laws being pushed for.
    
    It's already happened - as this brilliant comic shows. (I've no idea if Techdirt's already brought this up before.)
    
    Here!
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Vic (profile), 28 Feb 2012 @ 12:29pm

Is it possible that the artist knows how ridiculous it is, but wants to show Sony and RCA how ridiculous they are being?
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Mr. Smarta**, 28 Feb 2012 @ 12:37pm

What everything else?
The manufacturers of all the cars in the video need to get paid. And what about all the buildings? People built those buildings with their own sweat and hands. How much money do they get? And the trees? Somebody planted those trees, and they should get a cut. In fact, I was one of those people who helped pave that damn road she's walking on, so I want my freakin' cut! City didn't pay me, I was a contractor. I didn't sign anything that said my asphalt would EVER be filmed in ANYTHING. So somebody better be paying me really damn soon. And the sidewalks. I helped with those, too. I'm pulling in all of my fellow employees who paved that street and sidewalk, and we're going to town on the music industry. By their calculations of interest and number of people downloading/watching that video, damages are already around $20 million and both kidneys. They BETTER pay up.
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- Anonymous Coward, 28 Feb 2012 @ 12:46pm
  
  Re: What everything else?
  Actually, if you look at most videos, you will find that car logos and such have been removed or nulled out by modification, painted to match body color, or just removed.
  
  The first video does suggest that they don't know this or just don't care, not sure which.
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- Anonymous Coward, 28 Feb 2012 @ 12:47pm
  
  Re: What everything else?
  Actually, if you look at most videos, you will find that car logos and such have been removed or nulled out by modification, painted to match body color, or just removed.
  
  The first video does suggest that they don't know this or just don't care, not sure which.
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kenichi tanaka, 28 Feb 2012 @ 1:27pm

Sony simply messed up by not scrubbing out the painting. You find this happening in every film when a studio doesn't want to provide "free advertising" to companies who appear as store front signs, billboards, etc in the forum of product placement.

Those companies actually have to pay for their product to be featured in a movie or television series. Sony simply messed up by not doing their research. They didn't think anyone would notice and assumed it was "public". However, by featuring the artwork in a music video, from which they are seeking to make money from through music sales, they simply messed up.

This isn't some company who isn't making money from the artwork but rather a company in the entertainment industry who actually is making money from the production of that video.

Sony is simply found itself in the position where they are being slapped down by the same harsh copyright laws that they pushed Congress to pass in the first place. They're going to claim "fair use" but you won't see Sony allowing others to use their music via "fair use".
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kenichi tanaka, 28 Feb 2012 @ 1:44pm

It's pretty much a nuisance lawsuit because I don't think that Sony wants to go on record as being in favor of "fair use", which could be used against them in copyright or file-sharing lawsuits.
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Zem, 28 Feb 2012 @ 2:14pm

I am an architect, as such all of my real creative work ends up visible in the public domain. I always chuckle when this nonsense happens. People have been copying, reinventing and building on architectural designs for centuries with out paying royalties, liscening fees etc. It is one of the things that makes the best works or architcture possible.

As it stands now, if all of the copyright, artist rights and other nonsense realy does become law, I will be showered with underserved wealth. How would you feel if when you sold your home you had to give 15% to the original architect. There are moves to do something similar for painting and other art works. How would you feel is the realestate add, with a piture of your home, had to pay fees to not just to the photographer, but the architect, the landscape designer who did your yard, and the 17 year old, who lives next door, who made that funky letter box for you?

Stay in a motel, your bill not only includes the hotel fee, but a liscening fee to the architect and interior designer.

Music, painting, novels and movies are not the only creative works that are protected by copyright. Try applying the rules they are demanding to other works and see how utterly terrifying they are.
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Keroberos (profile), 28 Feb 2012 @ 7:35pm

I'm torn. On the one hand I think copyright lawsuits such as this are horrible and show just how bad the copyright system has become, but on the other hand I wish Sony would get their balls nailed to the wall over this seeing as how they were one of the ones that lobbied for the laws that created these kind of situations in the first place.
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Anonymous Coward, 28 Feb 2012 @ 10:47pm

It's interesting. In the video the rooms were decorated by a paid artist.
The female singing spends just as much time in front of the mural as in the two room scenes. They blocked/story boarded the mural when they scouted locations. Consider they were getting a third location backdrop for free. The muralist may have some grounds to stand on. jmo
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Richard, 29 Feb 2012 @ 12:40am

> It's already happened - as this brilliant comic shows. (I've no idea if Techdirt's already brought this up before.)

When a video is for news reporting and/or documentary film-making purposes, it would seem that there is a strong argument for fair use to allow the incidental capture of copyrighted and/or trademarked works. (Among other things, the preservation of reality is of importance.) When a video is for entertainment purposes, the situation may be less clear. (It may be interesting to consider how documentary films often have an educational function, in comparison to "biopic" films having an entertainment function. It is likely that "reality" TV has something of an entertainment function, despite the term "reality.")

On the issue of trademarked products being shown in movies and TV shows, there was a 2003 case where it was found that Disney was allowed to depict Caterpillar bulldozers in the movie "George of the Jungle 2," even though the bulldozers were being used by the movie's villains. In that case, it may have been for the better that Disney came out in the right.
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peter, 29 Feb 2012 @ 1:50am

Whats the problem?
If i can be sued for releasing a video I shot in a public place and faintly in the background you can hear a song being played on a radio......

What goes around come around.

Sauce for the goose etc
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sophisticatedjanedoe (profile), 29 Feb 2012 @ 1:42pm

Booth Sweet 's take on this story: their opinion - most likely meritless yet interesting.
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Joe Escalante (profile), 1 Mar 2012 @ 11:01am

It's a loser.
This case is lame but it's unclear how it would come out in court. There's no law requiring permission for logos, products etc. in filmed entertainment. As long as a product, even Coca Cola, is used in the manner in which it was intended, no permission is required. And any building visible from a public street may be filmed without permission, one exception being the photographing of a building that is also a company's trademark like the Mutual Of Omaha building.

However, they might be able to prevail on a state claim of unfair business practices since they defendants are making so much use of the art. It's not just a passing thing in the background. They are really exploiting it. Having said all this, all these lawyers should be ashamed of themselves for being involved in this lameness.
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