That would be god-awful. The mandatory protection of the mark requirements for trademarks result in all sorts of pre-emptive lawsuits because they “have” to to keep their mark. To make copyright work that way would be an utter disaster, resulting in more horrible litigation, and privileging the rights of people and corporations that place copyrighted material in public over the rights of the public.
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the words i wrote were about the genericism part of trademarking and not about continual use. ( not sure how that wasn’t clear… )
my point only is that there are copyrighted things that should be affectively public domain because they are already so part of public use. ( i’m looking at you lighting on the eiffel tower, and you the white album, and you mickey mouse. they’re all a part of the commons, they should be treated as such. )
but again, maybe (restoring) shorter copyrights and utilizing intent would be enough
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I think there would still be cases for fair use of images or video including incidental capture of their corporate art. I’m not a lawyer, but did some research on copyright recently and was pretty surprised how much we can do under fair use.
For now…
Unfortunately, fair use is an affirmative defense rather than a clear law that prevents lawsuits or allows for easy motions to dismiss, and the only way it is truly decided is in individual court cases, where even if you should be firmly in the right, a well funded opponent may be able to win anyways, especially if they can out fund you.
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Bad take. That same justification could be made to allow them to use any kind of copyrighted material in their ads. “I wouldn’t by a merc because of the song playing in the ad” for example.
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I read that as Freedom of paranoia, which I also support, and which may also be relevant to this case.
The idea that they can even claim copyright is ludicrous. They put it in an extremely public place where anyone who wanders by can see it. They made absolutely no attempt to put any kind of controls on access to their work. They made it accessible to the general public 24/7. They don’t even have any kind of legal rights to control the property it’s painted on. In a sane world, the artists’ claims would have been thrown out on day one.
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Obviously it took a lawyer a year to convince them that he could get them some money. Either that or it took a year to find a lawyer who is dumb or venal enough to take such a case.
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Thank you for your opinion about my opinion.
My thoughts on your opinion is that background scenery, as well as murals, aren’t songs. Not all creative endeavors are treated equally, by people or the law. So saying a mural should be treated the same as a song is – in my non-lawyer, just a thinking person opinion – comparing apples to oranges.
Songs have huge industries lobbying hard to limit how they can be used, and ensure that money is collected each time one is heard in a public space.
The muralist lobby hasn’t been keeping up.
Commercial song artists release their creations to the world with an understanding that they will receive some kind of residuals from someone at some point, in addition to whatever they make in album/cd/concert ticket/etc sales.
Commercial muralists don’t.
Again, apples and oranges. Different fields of creative expression, different rules.
I want an internet law school where i submit all of my online personas, sock puppets, and digital milieu and they tell me whether i can repeat fallacies or object to other people’s “content” with authority of I Am An Internet Lawyer.
A suppose that a browser plug-in would be fine, too.
Given existing tendencies toward attempts to control or block public spaces(gating/hiding rights of way, rentacoping undesireables, etc.) and the embrace of things like ‘privately owned public spaces’ and just straight up private spaces that look sort of public(eg. malls vs. shopping streets); the last thing we need is a cheap, powerful, tool for essentially being able to paint private law backed by significant civil penalties, risk of litigation, and probably every automated takedown bot on the internet, onto public or public accessible spaces.
And that is exactly what a finding against Mercedes would do: provide a presumptively authoritative copyright claim against anyone taking a picture(or even doing something like leaving a voicemail if the place they are calling from has copyrighted Muzak) in any space they’ve been able to splash something that meets the minimum standards of creativity for copyright protection.
There’s not even an obvious reason why public art would be exempt: you probably don’t own the copyright to your wallpaper(if your house has some), or the pattern on the cloth your pillows(and potentially clothes, if not solid colored in a non-pantone-owned shade).
If an incidental glimpse of copyrighted work is sufficient; the rightsholder gets significant leverage to impose law-by-contract over a broad swath of activity. That will go at least as well as mandatory binding arbitration.
If anything, the only safe option would be an explicit statement that by making public art certain rights concerning control of derivative works are disclaimed and cannot be retained(there’s a stronger argument, though not zero risk, for letting people in private contexts negotiate; but in a public context a failure to get those rights disclaimed is a unilateral imposition on everyone who uses the space in the future, not good).
Hopefully the artists got paid adequately, if it was a commission; or got whatever they sought if it was inspired by other motives; but allow them to usurp control over all public space in line of sight? Hard nope.
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