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Hy-Vee sued by artist for using his street mural in a Super Bowl commercial

Hy-Vee
Posted at 4:11 PM, Feb 19, 2022
and last updated 2022-02-19 17:11:26-05

An artist whose Des Moines street mural was seen in a 2019 Super Bowl commercial for Hy-Vee Foods is suing the grocery chain for alleged copyright infringement.

In a federal lawsuit filed last week, painter Chris A. Williams alleges that in 2019, Hy-Vee created a television commercial to promote the retailer’s partnership with Oprah Winfrey’s “O, That’s Good!” product line of comfort food.

The commercial documents a woman’s progress from young girl to college graduate who is fueled by what the advertisement calls “hard work and determination” and products from “the generous folks at Hy-Vee.” It depicts the woman near a large, outdoor mural, first as a young girl running home from school, and later as an adult woman who walks past the mural before giving an apple to a homeless man.

The mural that’s seen in the ad consists of large, colorful, geometric shapes and was painted by Williams, who claims in court papers to own “the copyright and moral rights” to the artwork, as well as the “exclusive right to monetize his work.” He alleges Hy-Vee never sought his permission to use the mural in its ad.

“Few marketing opportunities exist that can rival the power of a commercial spot during the NFL Super Bowl,” Williams’ lawsuit claims. “Super Bowl commercials that succeed in creating memorable moments are widely discussed and circulated online to viewers far beyond the Super Bowl’s original audience.”

Williams says he painted the mural, located on a wall at the corner of 6th Avenue and College Avenue in the Riverbend neighborhood of Des Moines, as part of a community project called the 6th Avenue Corridor Revitalization Plan, and that he did so pursuant to a contract with 6th Avenue Corridor.

Williams claims he registered the mural with the United States Copyright Office on June 26, 2019, which was five months after the commercial first aired during the Super Bowl.

The commercial, the lawsuit claims, “depicts the mural clearly and in full lighting,” while filling almost the entire frame of certain shots. “In fact, practically the only part of the mural that is not visible during the commercial is the lower-left corner — which bears Mr. Williams’s signature and Instagram handle,” the lawsuit alleges. “Nearly three years later, the commercial remains publicly available online.”

Hy-Vee has profited from his intellectual property, Williams claims, by increasing the value of its brand through association with his artwork. To determine the full extent of his actual damages, Williams says an accounting will be needed to ascertain how much revenue was generated by the grocer’s alleged violation of his copyright. The lawsuit also seeks unspecified punitive damages.

The company has yet to file a response to the lawsuit and a spokesperson did not immediately return calls seeking comment. The company has said in response to a similar, previous claim filed by Williams that it does not comment on litigation.

Williams first sued Hy-Vee over the ad in August 2019, claiming that as an artist he had eschewed the sort of “mass-market consumerism” exemplified by the ad. “Indeed, nothing is more antithetical to a street artist’s credibility than association with something as banally commercial as a chain of grocery stores,” the 2019 lawsuit stated. “People who recognized his mural in the campaign would have concluded that Williams ‘sold out,’ diminishing the value of his work and reputation.”

Three months after filing the lawsuit, Williams withdrew his petition but preserved the right to refile the case at a later date.

Street art generates copyright claims

Copyright claims associated with the commercial use of street art, graffiti and public-facing murals that are part of buildings have become a contentious legal issue. Generally, even though street artists don’t own the walls on which they paint, the art itself is typically considered protected by copyright law.

There is a well-established copyright exemption for “architectural works,” which means publicly visible buildings can be freely photographed by others as long as there is no resulting implication of direct association or commercial endorsement. But it’s not always clear whether murals and other forms of street art should be treated as parts of buildings for which the architectural exemption applies.

In July 2020, artist Allison Tinati sued Alaska Airlines in federal court in Los Angeles for depicting in one of its web-based advertisements a building mural she had painted on commission for the Arts District of Los Angeles. The case was settled out of court last March.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.

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