In today’s world, a clash between a large corporation and an aerosol artist usually results in an uproar from outspoken keyboard warriors who slam big businesses on social media for their violations. Active painters like Revok, Smash 137, and Ahol Sniffs Glue gained the support of the masses when faced with a decision to take pending copyright violations to court. Not naïve to the power of social media, where the hashtag #graffiti has been used 41.9 million times on Instagram, violating companies typically fold rather quickly in the face of a potential media image crisis.
Unfortunately, Canadian-born artist Daniel Bombardier, AKA Denial, wasn’t afforded the opportunity to make a decision about whether to take Mercedes Benz to court for violating his copyright. Instead, when Mercedes-Benz used Denial’s work for commercial purposes in an Instagram ad, Mercedes went ahead and sued Denial first!
So, how does that work? Denial allegedly sent a letter through his attorney to Mercedes putting the company on notice of a potential violation. In court documents, Mercedes refers to Denial’s letter as an “aggressive shakedown effort,” so they sued first in an attempt to get a judge to rule in their favor… Hey Mercedes, if a graffiti writer was actually trying to “aggressively” shake you down, it would not be via a letter.
On January 20th, Denial visited the Museum for the first time and dropped off some pins. When I asked Denial what brought him to the Museum, he dove deep and unequivocally stated: “This art form saved my life.” We invited Denial to attend the upcoming opening of the Wet Paint show on February 1, 2020. He shared that his life has been disrupted with mandatory court dates, mediations, and meetings with his attorney.
What most people don’t know is that Denial spent many years battling US immigration laws in order to work and provide our communities with his unique and clever murals. Enter a classic example of “be careful what you wish for” as Denial finally won his fight to be here, only to become subject to Mercedes’ attritional tactic of using the expensive, time-consuming Federal legal system to scare away graffiti artists seeking to exercise their rights to protect their work.
Denial has been forced to hire a lawyer, avail himself to the discovery process, manage media inquiries, and become tethered to Detroit because of court dates. He does all of this with the attitude of a true arts advocate who seems proud to endure this unpleasant journey for American artists across the country who are undoubtedly going to be impacted by the outcome of this case.
Unfortunately, it is a real possibility that this case will end in some type of confidential settlement like many past similar cases. Without knowing the outcome, there are still a few legal takeaways that should be highlighted here:
- Register the copyright for you work! This costs between $35 – $55 and is money well spent in the event of a violation. While you can still prosecute a violation that occurred while the art was not registered, you are entitled to statutory attorney’s fees if the art was registered at the time of the violation.
- Mercedes removed the ad from Instagram as soon as they received Denial’s letter. If you believe there is a copyright violation, be sure to document it with dates, times, number of impressions, etc. This information can be used as critical evidence in the case.
- Find a Copyright lawyer in advance so that you’re not in a bind during crunch time. Trying to handle this type of issue on your own against savvy big business is a bad idea and may result unanticipated consequences.