Mercedes Benz is taking a group of artists to court over a series of Instagram posts – and simultaneously sending a message that it will not stand for anyone’s alleged “shakedown efforts.” The U.S. arm of the German automaker filed four separate suits in a federal court in Michigan on Friday, alleging that counsel for artists Daniel Bombardier, James "Dabls" Lewis, Jeff Soto and Maxx Gramajo threatened it with copyright infringement lawsuits if it “did not pay a substantial sum of money” in connection with the appearance of their murals in the background of images that appeared on its Instagram account last year.
According to Mercedes’ complaints, over a year after it posted four images on Instagram of its newest G 500 model driving through the streets of Detroit, which it received a permit from the city to do, counsel for the four artists contacted Mercedes, threatening it with a copyright infringement suit.
Mercedes asserts that one of the photos it posted in January 2018 included “a partially obstructed and blurred image of a mural that [Bombardier] had painted on a building,” prompting the artist’s lawyer to inform Mercedes that if it “did not pay him a substantial sum of money,” he would sue for copyright infringement. (Jeff Gluck, counsel for the four artists, denies that any amount of money was ever demanded).
The car company claims that it “immediately removed the Instagram posts from its account, as a "courtesy” to the artists. Nonetheless, Mercedes alleges that their “attorney continued making threats against [it], claiming that [Bombardier and the other artists] desired to ‘expose’ [Mercedes], and use formal discovery to learn information other people can use to sue [it],” as well.
While Mercedes does not deny that the artists’ murals appear in its series of photos, the German company’s counsel denies any infringement, arguing that its use falls neatly within the realm of fair use. To that point, Mercedes claims that the murals are “not the centerpiece of the photographs or the series of six photographs,” and instead, merely “appear only because [they are] integrated into the cityscape that MBUSA included as part of the background.”
The angle of the photo that contains Bombardier’s mural, for instance, makes it so that the mural is “depicted at a steep, oblique angle in the photograph,” which is “designed to draw the viewer’s focus immediately to the G 500, not the mural,” Mercedes argues. And still yet, Mercedes asserts that its Instagram post “depicts only a minimal amount of [Bombardier’s’] mural in the background of the photograph,” which “fundamentally transforms the visual aesthetic and meaning of the mural,” thereby, making this a case of fair use, as opposed to infringement.
Finally, Mercedes alleges that its Instagram post and Bombardier’s murals, the latter of which are “known for creating art that critiques consumerism and the human condition,” do not target the same markets or the same audiences, and the Instagram post “has not decreased demand in the market for [Bombardier’s] mural or depictions of [his] mural.”
With the foregoing in mind, Mercedes has asked the court to declare that it is not infringing Bombardier’s copyright-protected mural by way of its “de minimis” use of it in the background of its photo, and find that instead, its use is fair.
Jeff Soto, one of the defendant artists, said in a statement that he and fellow defendant Maxx Gramajo “attempted to discuss the matter with [Mercedes], but instead, they sued us claiming they did not violate any copyright laws and are asking the court to rule that we have no rights against them.” He further asserts that the automaker “filed these lawsuits secretly while we were still talking with them and waiting to hear back from them.”
As for their counsel, Jeff Gluck, he told Detroit News on Monday that "Mercedes' actions could intimidate artists into not wanting to make any artwork outdoors for fear that companies will use their work without permission, and we must not let that happen."
*The case is Mercedes Benz USA LLC v. Daniel Bombardier, 2:19-cv-10951 (E.D. Mich).
UPDATED (April 2, 2018) to include quote from Jeff Soto and a comment from Jeff Gluck.