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Thursday, January 8, 2015

S.F. Muralists Sue Realtor For Using Their Art to Sell "Luxury Homes"

Posted By on Thu, Jan 8, 2015 at 4:24 PM

click to enlarge One of the murals as used in Zephyr's calendar. SF Weekly did get permission to use this, by the way. - SUSAN KELK CERVANTES / FEDERAL COURT DOCUMENTS
  • Susan Kelk Cervantes / Federal Court Documents
  • One of the murals as used in Zephyr's calendar. SF Weekly did get permission to use this, by the way.
The Gentrification War in San Francisco has reared its ugly gadget-head again. 

A number of renowned muralists brought charges against a real estate agency earlier this week claiming it didn't get permission to use their work to sell "luxury homes" in San Francisco. 

Eight muralists on Tuesday submitted a federal complaint in San Francisco against Zephyr Real Estate, the city's largest independent real estate firm, for allegedly using unauthorized reproductions of copyrighted works of art in a 2013 calendar to advertise properties.

“We tried before filing a lawsuit to resolve matters with Zephyr and that was frustrating,” said attorney Brooke Oliver, who represents the plaintiffs. “The artists regret having to file a lawsuit but are determined to protect their rights to not have their artwork taken without their permission to promote a real estate company that is so deeply involved in gentrifying the San Francisco neighborhoods where these murals live."

The plaintiffs in the case, including artists Francisco Aquino, Mona Caron, Susan Kelk Cervantes, Jetro Martinez, Sirron Norris, Henry Sultan, Jennifer Badger Sultan and Martin Travers, had images of their own artwork ripped from sfmuralarts.com, a website that displays local public art online. 

Despite the fact that the artists' contact information accompanied the artwork on the website, Zephyr Real Estate decided not to reach out to the muralists for permission, and instead opted to credit the website as its source for the images.

“All of these artists have a history of licensing," Oliver said. "They’re professionals, they make money off their artwork. It's not a problem to license their artwork, but in this instance to use their artwork to sell luxury homes is what's objectionable.”

The company went on to distribute the calendar more than 9,300 times in person and on the internet, even after they were notified in January 2013 of copyright infringement, the artists claim. The company continued to do so until May of that year when served with a formal cease-and-desist letter, according to the claim. 

click to enlarge Part of the "Bikeway" mural on Duboce Street. - MONA CARON / FEDERAL COURT DOCUMENTS
  • Mona Caron / Federal Court Documents
  • Part of the "Bikeway" mural on Duboce Street.

“It's beyond explanation why they did," said Oliver. "We sent the cease-and-desist order in May and they cooperated by stopping distribution of the calendar, but by that time most of the calendars had already been distributed. By May, who’s getting new calendars?”

But Randall Kostick, president of Zephyr Real Estate, said that's not exactly how the story went. Though he admits that the real estate company did not collect all of the remaining calendars and hand them over to the artists' attorneys until May, that was because it was the first time they were notified of apparent copyright infringement.

"When I got the email I said 'oh my God, they think there's a copyright infringement' and I found out that, yes, we were supposed to get permission," said Kostick. "It didn't occur to me or the person that does our marketing for us.”

Still, he contends, their accusation that the calendars are used for profit is "completely wrong."

"These are gifts that are given away,” he said. "We love the art, we wouldn't have published it unless we thought it was really great art.”
 
The murals reproduced include Caron's "The Duboce Bikeway Mural," an iconic piece which spans and entire city block of Duboce Street between Market and Church streets.

"The sheer number of murals that were misappropriated to sell luxury homes in neighborhoods is what’s particularly rankling,” Oliver said.

The muralists are suing Zephyr Real Estate for copyright infringement, false endorsement and the misappropriation of right of property.

“It's kind of a sad thing because we produced these calendars to capture some of the special characteristics in San Francisco,” said Kostick. “It's just kind of sad that this turned into what it did because there was no maliciousness intended, there was an immediate apology and immediate compliance.”
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