By Alexis Terrazas
Zephyr Real Estate—San Francisco’s largest independent real estate firm—might’ve recently learned its lesson regarding copyright infringement, but that doesn’t mean its federal lawsuit is going away anytime soon.
On Jan. 6, eight prominent muralists filed a complaint in federal court against the San Francisco real estate giant over a Zephyr-produced 2013 calendar that used unauthorized reproduced images of the artists’ murals.
The artists—Francisco Aquino, Mona Caron, Susan Kelk Cervantes, Jetro Martinez, Sirron Norris, Henry Sultan, Jennifer Badger Sultan and Martin Travers—are suing Zephyr for copyright infringement, false endorsement and misappropriation of right of publicity.
“We definitely tried to resolve things with Zephyr. But that’s been frustrating,” said Brooke Oliver, the attorney representing the eight artists, seven of whom reside in the San Francisco Bay Area. “So we regret having to file a lawsuit, we wish it hadn’t come to this. But these are important rights.”
The 2013 calendar titled “San Francisco Murals” ran unauthorized images of the copyrighted murals alongside photos and descriptions of luxury homes Zephyr had sold in San Francisco. The complaint alleges that Zephyr used the mural images to advertise luxury homes for sale.
“We believe that the calendars were definitely used to sell luxury houses,” Oliver said. “Because on every page of the calendar, next to where the mural was depicted, is a picture of a house, and a blurb about that house. So the homes described were either homes sold by or on the market by Zephyr.”
But Zephyr’s President Randall Kostick, who said the calendars were free giveaways to clients, claims otherwise.
“One of the things that we’re trying to do is highlight some of the great properties that we’ve been involved in the sale of,” Kostick said. “I think [Oliver] would argue the point that the calendars are distributed to our clients, and that our clients therefore would see our name, and therefore they want to list and sell properties with us in the future. And I’m not saying that there’s no influence there, but it is such a very small, limited influence. It’s just a way to say thank you. And if thank you encourages future business, I guess you could argue that.”
Oliver sent Zephyr a cease and desist letter on April 26, 2013, and received roughly 625 undistributed copies of the calendar on March 12, 2014. Nearly 9,300 calendars had already been distributed, according to Oliver.
“And we believe that they very much were trying to associate themselves with the murals and the muralists,” Oliver said. “Saying that, ‘Hey, we’re a cool real estate company. We work with activist artists, and we love community art, so go with us instead of some other bad real estate company.’”
Kostick maintains that Zephyr complied with all of Oliver’s demands regarding the complaint, even offering a deal that included compensation for all eight artists.
“I’m saddened that it continues, and that they haven’t agreed to accept a reasonable settlement and move on,” Kostick said. “It’s a very unfortunate situation. It all falls on me. I didn’t realize that publicly displayed art needed to have approval of the artist. Otherwise I certainly would’ve sought and gotten approval [from] the artist before we published anything.”
But Kostick believed the lawsuit carries other motives.
“Honestly, I think part of the motivation here, is that the artists want some publicity for the fact that the Mission is changing, that the city is changing. And I get that, I understand that,” Kostick said. “I think I understand why this is continuing on, because they want to make a public statement about this. And I understand why they want to make a public statement about it, because there’s a housing crisis in San Francisco and it’s certainly impacting artists and it’s impacting a lot of other people too.”