Greetings From Buffalo! You’ve Been Served!
Reproduced above is a Tweet from the Buffalo News’ Ben Tsujimoto, which includes an image of a mural by local artist Casey Milbrand.
Mr. Milbrand owns the copyright to that mural and is making news this week about the legally aggressive, heavy-handed protection of his intellectual property.
Hey, did you know those Instagrammable murals could sink you into legal jeopardy? Now you do! If you use Instagram for commercial purposes – everything from promoting your business to “influencing,” you could be next on Mr. Milbrand’s and his counsel‘s “to dun” list.
It’s one thing to reproduce the image for your personal, non-commercial use, but if you use it as part of your efforts to promote a business, you may be on the hook to an extremely litigious IP holder.
Had I taken a picture of that mural to use it in this blog, he might threaten to sue me, or send me a bill. Even though this blog is hardly a commercial venture, I’ve had it happen before.
Mr. Milbrand is a solo artist protecting his copyright, and – in the abstract, with no other information – this is laudable and correct. But just because someone has the right to do something doesn’t mean one ought to do it.
He may be 100% within his rights to invoice a bike tour company $5,000 for using a picture of its customers in front of that mural, but is that really in the spirit of the thing? Our local convention & visitor’s bureau lists this mural as if it is, itself, a tourist attraction. It is part of a civic beautification project.
In a Buffalo Rising article from 2016, Milbrand is quoted as saying,
I’ve been to a lot of cities, and so many of them have similar postcard-inspired murals where tourists flock to snap photos so they can share their travels with the world. I want to bring that idea home. And with new street art going up all over the city and tourism at an ultimate high, now is the time for our own mural that welcomes visitors to the Queen City.
So the whole raison d’etre of that mural is to have people take pictures in front of it, as Buffalo Bike Tours did with its customers. Anyone who suggests that the use of that mural on Bike Tours’ website is tantamount to an endorsement or indicative of a marketing deal between the two is being disingenuous.
To protect his copyright in a more good-neighborly, Buffalove-y way, the unnecessarily diplomatic and uncontroversial thing for Milbrand to do would be to have his lawyer draft a polite letter advising the bike company (and others) that he owns a copyright on the image and would they be so kind as to either remove it from their marketing materials or pay him a license fee pursuant to an attached schedule. Doing it that way maintains the spirit of the thing, protects and enforces his rights, and gives infringers a fair warning. People may be ignorant about the copyright status of artwork on the side of a building.
I would rather that than have Roswell Park divert $180,000 from cancer patients to a guy who painted a postcard on the side of someone else’s building.
Moscato said Wednesday that the amount is greater than his tours’ total revenue from last year, and that the image of the riders in front of Milbrand’s mural represents a “Kodak moment” from one of about a dozen stops along the history tour. Moscato said he has removed the images from his website and no longer plans to stop at Milbrand’s mural on the tour.
Seriously, who is winning here? Milbrand has protected his copyright, sure, but in such a way that is antithetical to the whole “Buffalove” vibe it purports to promote.
Had such a demand been made and deliberately ignored, then I would be fine with the invoice and threat. But unless you’re 100% sure they did it with malice, give people a chance to do the right thing .
I once used an image on a blog post that I found and copied from Twitter. I received a similar threat (albeit for half the amount) from a nationwide copyright trolling law firm. It was resolved because the aggressive preening was overly clumsy and the claimed copyright had been filed well after the date of my alleged misappropriation.
I saw Mr. Milbrand’s Instagram posts (here and here) where he defends his conduct. It is laudable for a local artist to protect his intellectual property. If he’s aggressively dunning for-profit mega-corporations with legal departments, I don’t necessarily have a problem with it. This isn’t a question about whether Milbrand is legally justified or correct – it is more to me a question of proportionality.
Is it really necessary to go after Buffalo Bike Tours – which featured this mural as a stop on one of its tours – with aggressive demands for $5,000 and threats of imminent litigation?
I’m here to paint murals that inspire and lift peoples spirits, and just like our city I REFUSE to be bullied by people that don’t know my HEART
“Greetings from Buffalo!” Spirits lifted? That’ll be $5,000 and a summons.
Who’s bullying whom? Buffalo Bike Tours merely shared an image of its happy customers – spirits lifted – in front of a local mural, painted on the side of a building. It is literally the point of the mural. While I get and respect the need to protect a copyright, I think that Mr. Milbrand could have done so in a gentler more “good neighborly” fashion.
