As explored in Part 1, street art is entitled to both legal protection under copyright law, but also legal use by others under the fair use doctrine. In the case of celebrity pastor Rich Wilkerson Jr. and Vous Church though, the assumption of fair use has officially landed them in the courtroom. To recap, Vous Church heavily utilized reproductions of street art located at Jose de Diego Middle School in the Wynwood Art District of Miami, which the church rents for its services, that was charitably created by well-known local artists through the RAW Project in its print and social media launch campaign without contacting the artists for permission.

On January 6, 2016, the eight artists officially filed suit against Vous for copyright infringement, asking for actual damages, licensing fees, and a permanent injunction against further infringement. According to Section 501 of the Copyright Act, infringement occurs when anyone violates any of the exclusive rights of the copyright owners. Beginning in Section 106 of the Copyright Act though Section 122, some of exclusive rights of copyright owners include the right to reproduce the work, to prepare derivative works, to distribute copies, and to display the work publicly. Plaintiff Artists assert that Vous “copied, reproduced, distributed, adapted and/or publicly displayed School Murals in the Infringing Advertisements without the consent, permission, or authority of Plaintiff Artists.”

To defend itself, Vous will likely claim the reproductions were within the fair use doctrine. Section 107 of the Copyright Act allows “the fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” without infringing a copyright. The U.S. District Court in the Southern District of Florida will need to consider Vous’s use in light of the four factors listed in the statute: the purpose and character of the use, including commercial nature or nonprofit education purposes; the nature of the copyrighted work; the amount and substantially of the portion of copyrighted material used; and the potential market effect of the use on the copyrighted work.

Factor one is a toss-up: on the one hand, Vous is automatically considered a nonprofit organization because of its status as a church, but on the other, its use of the murals was for advertising, not educational purposes. Plaintiff Artists made a point in their complaint that Vous is a business, giving examples of its Vous Conference 2015, an event that cost $80 to attend and attracted thousands of attendees, and its e-commerce website, where patrons can buy $40 Vous-branded sweatshirts, all developed and advertised by Vous’s own in-house staff of design professionals.

Factor two is likely in favor of Plaintiff Artists. Yes, the nature of the copyrighted work is street art visible to anyone who walks by, in addition to it be charitably donated to the public, but Plaintiff Artists maintained appropriate licensing in regard to the use of their artwork. Additionally, they assert that they created the school murals and granted use “to benefit the School and its students, not a well-funded celebrity church brand…”

Factor three is in favor of Plaintiff Artist: Vous simply superimposed its logo and meeting information over the reproductions of the street art, using a substantial portion in relation to the copyrighted work as whole.

Factor four is also a toss-up: the street art was charitably created by Plaintiff Artists through the RAW Project, a grassroots campaign addressing the disparity of funding for arts in schools and transforming a bleak educational space into a colorful and vibrant space. As a donation, the street art should therefore have no market value to the Plaintiff Artists any more. But, self-admittedly, at least one of the Plaintiff Artists “rejected a substantial offer from a corporation seeking to license one of the works at issue in this lawsuit.” Therefore, the murals still do retain market value for the Plaintiff Artists.

It will be interesting to see how this legal battle between two culturally significant powerhouses turns out – other similar situations have resulted in undisclosed settlements in favor of the artist.  The full complaint can be found here.

— Patricia Patino


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