43North is one of at least five Buffalo organizations and businesses that local artist Casey Milbrand has accused of violating the copyright on his outdoor murals by using them in promotional and marketing materials without permission.
The not-for-profit entity that helps accelerate startup businesses, however, is alone fighting back in court.
Through attorney Charles C. Ritter Jr. of Duke Holzman Photiadis & Gresens law firm, 43North in July responded with denials to Milbrand’s civil complaint, which had been submitted to district court in March. Ritter argued that fleeting footage of two murals in a company YouTube video does not meet the legal requirement for copyright infringement.
Ritter said that Milbrand’s “Greetings from Buffalo” mural located downtown and “Lookin’ Good” on Hertel Avenue each appeared for less than one second during a two-minute, 57-second video. The artworks were not identified by name and were not prominent parts of a video intended for “educational purposes,” the response said.
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In Milbrand’s original complaint, the artist included screenshots from 43North’s video titled “Why Buffalo” published on its YouTube channel on Oct. 12, 2021. The video is no longer publicly accessible.
Nearly seven years after the mural's creation, the artist faces criticism for sending invoices to businesses and institutions requesting sums from $5,000 to $180,000 for alleged copyright infringement.
The argument for brevity falls under “fair use,“ 43North’s response said, which is a defense in which a copyrighted work may be used without permission for teaching or research reasons. Milbrand’s complaint failed to show how 43North’s use of the mural had “any commercial impact” on the artist, the response continued.
Stuart Shapiro, Milbrand’s attorney, said Friday that he does not discuss cases.
In the spring, Milbrand said that protecting his copyright is vital to being a professional artist.
“As an artist, you must become an expert on things you never dreamed of,” he said in an interview with The Buffalo News. “Copyrighting, licensing, contract negotiations, project management, proposal writing and project fundraising are all new skills that I learned from teaching myself how to run my own art business. My mural designs have raised thousands of dollars for the community, beyond the painting of my murals.”
Since 2021, Milbrand has served invoices to Roswell Park Comprehensive Cancer Center, the University at Buffalo, Buffalo Bike Tours, Welcome 716 and 43North requesting between $5,000 and $180,000 for copyright infringement, according to a previous Buffalo News report. In three letters reviewed by The News, Milbrand included a screenshot of his federal copyrights on “Greetings from Buffalo” and “Lookin’ Good,” which permit him to request $150,000 for each intentional infringement or $30,000 per an unintentional infringement.
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Roswell Park settled out of court in April 2022 for a “modest sum,” according to a spokesperson. UB Vice President for Communications John Della Contrada confirmed earlier this month that Milbrand’s case against the school has yet to advance beyond a notice of claim sent to the Attorney General’s Office.
Representatives from Buffalo Bike Tours and Welcome 716 said they did not respond to Milbrand’s invoice and that their businesses do not currently face lawsuits from the artist.
The parties invoiced and others who had previously advocated for Milbrand’s public art criticized his approach of requesting financial compensation instead of the more traditional cease-and-desist letter that requests immediate removal of copyrighted material as a warning.
Public art leaders spoke out, too.
“We believe that public art is inherently for public enjoyment,” Aaron Ott, curator of public art for the Buffalo AKG Art Museum, said in April. “We and the artists we work with expect and celebrate public engagement with the artworks. We do not believe that threatening unnecessary litigation and monetary demands is aligned with the spirit of public art.”
Ben Tsujimoto can be reached at btsujimoto@buffnews.com, at (716) 849-6927 or on Twitter at @Tsuj10.
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August 27, 2023 at 06:00PM
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43North battles artist's copyright infringement complaint - Buffalo News
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