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Des Moines Artist Sues for Copyright Infringement

Des Moines Art Festival Exec Stephen King sent me this story:

Des Moines artist Chris Williams never imagined his work would be in a Super Bowl ad, but he recently became aware that an ad by the supermarket chain Hy-Vee featured prominently his mural in a Des Moines neighborhood. Not only that, the narrator was Oprah. It was a 4 minute feature that showed his work twice. Right.

So you've got Oprah, the supermarket and original art. Who profited?

I believe you're right. Not Chris.

It’s clear that artists are sick of their creations being treated like neutral backdrops for a plethora of corporate initiatives, and they’re fighting back en masse.

Chris is suing Hy-Vee for $25,000. His story has spread way beyond Des Moines.

Learn more: https://observer.com/2019/08/chris-williams-hy-vee-oprah-advertisem...

My husband was a photographer, he always carried "model releases" with him, to insure he had permission. Did Hy-Vee get permission? Is this copyright infringement? What do you think?

Views: 1268

Comment by karen cooper on August 26, 2019 at 5:55pm

WAS it copyrighted and if yes, then why? Most people that see it, whether in the ad or on the wall will not think of it as art, but rather just a painted wall.

"neutral backdrops" - I think that's a pretty good description for the wall.

Another Des Moines Register article added:

"However, fair use laws allow the use of copyrighted material as long as it is done for a “transformative” purpose, like commentary, criticism, news or parody.

In a letter to Williams’ attorney, Hy-Vee’s representatives claimed the use of the mural was transformed in the commercial and the usage of the mural was a small portion of the overall advertisement."

Comment by Judy Christian on August 27, 2019 at 9:24am

Of course I have no specifics as to how the commercial originated, but I feel that the artist is approaching this all wrong. He's been handed a GIFT!!!!!!!!!

An image of your artwork with Oprah standing next to it- come on!!!

Surely a creative person can figure out a ton of ways to get a lifetime of credibility and publicity out of that!

Comment by Larry Berman on August 28, 2019 at 4:41am

How will anyone know who created the work of art? And an artist’s work is automatically copyrighted at the time of creation. But usually an attorney won’t take the case unless it’s been registered. In a case like this, the people who researched the location should have had the artist sign a release. They are paid to make sure the background is usable.

larry Berman 

Comment by Connie Mettler on August 28, 2019 at 9:39am

In total agreement with you, Larry. This was obviously a big budget production, all the bells and whistles in place, as well as agents, lawyers, etc. I think the artist does have a leg to stand on AND as Judy says above -- an opportunity to capitalize on the situation.

Comment by Steve Sawusch on August 28, 2019 at 11:03am

Sounds like the work was not registered ($25k). Note to artists, register your work.

Comment by Sonja Jones on August 28, 2019 at 11:04am

To Karen Cooper - all art, once created, is copyrighted.  You don't need to register it or file anything to have this protection.  Also, the reasoning presented by Hy-Vee's attorneys is flawed to me.  If I'm watching a television program, and a sit-com has one of my paintings hanging on the back wall of the set, would that be considered just "background"?  According to their logic, my painting really had nothing to do with the comedy, and it was "transformed" by being in their television program.  Sorry - not buying it.  And yes, Judy Christian, I would be happy that so many viewers would see my artwork, but as Larry pointed out, they would have no idea who painted it or how to contact me.  I'd rather be paid fairly for its use by the television production company!

Comment by Mitchell Evans on August 28, 2019 at 4:28pm
Curious...if Hy-Vee had contacted you, what would you have asked as compensation ? And if they declined your offer and found another backdrop that they didn’t have to pay for, would you have given them permission in trade for the free exposure ?
Comment by Sonja Jones on August 28, 2019 at 4:49pm

I guess that would depend on how noted of an artist I was, lol.  For me, myself, I wouldn't have asked for much - maybe $ 100 - $ 250 - certainly not $ 25,000.  But the artist in question might be much more in demand and well-known.  Maybe $ 25,000 is appropriate for his/her work.  And, again, myself not being well known might have traded for the recognition alone - granted that they acknowledged that it was my work, and that I even knew the commercial was going to be aired so that I could take advantage of it to publicize it on my own through my personal social media connections.  It seems this artist had no idea until either he saw the commercial on air or someone who knew him informed him of it.  There is no benefit of exposure if the artist remains unknown.

Comment by Connie Mettler on August 28, 2019 at 5:16pm

I'm thinking asking "only" $25,000 is a good idea. For that amount of money they'll probably be glad to get rid of him. If he'd asked $250,000 (and don't think that people don't often sue for much more than they think they can get) he might have more of a problem.

Also, in the case of the painting on the wall in a movie or TV program, it would have probably have been purchased from the artist at some time or other. Every now and then I see art in a magazine, and sometimes even on TV, where I know the artist and it has been a purchase.

Comment by Larry Berman on August 28, 2019 at 5:50pm

Prediction. Their first offer will be $500 and then they'll expect to settle for $2000 or $2500.

Larry Berman

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