Banksy graffiti, Intellectual Property & who owns what?

General - Interesting Topics

The Infamous UK street artist and political activist known as ‘Banksy’ has hit the headlines recently in relation to his provocative social imagery spray painted on the side of buildings and walls the world over. Initially, the artist’s work was treated as mere graffiti by most and outraged many people with its powerful imagery and location (normally on the side of a property owned by someone else). This is not the case anymore and it appears Britain is now willing to accept these unique images as art and protect and embrace them.

Controversy has arisen during the last week over the iconic image of the young boy making union jack bunting with a sewing machine (a depiction commenting on child labour and contempt towards the Queen’s Jubilee celebrations) that was ripped from a Poundland store in East London and placed on an auction site in Miami with a guide price of $450,000! Locals have expressed anger towards the removal of the Banksy artwork as nobody is sure who removed it (Poundland tweeted it was not them who removed the artwork as they do not own the building).

All that is known is from what the Miami auction house has commented, “We take a lot of care with our consignors, who they are, what they do, and if there’s any illegality we will not touch it. Everything is checked out 150%.”Does this mean it was the owner of the building that removed the picture? Possibly, but nobody seems sure.

This poses a bigger question though. Even if it was the owner of the building who sold the image, are they in fact the owner of the image in order to sell it? They may well own the bricks and mortar on which the image was painted but do they own the copyright and image rights as they are not the artist? Typically, it is the artist who owns the copyright and image rights in whatever they paint but in the case of graffiti it is not that straight forward because the artist clearly does not own the ‘canvas’ so to speak. So who owns what? In theory at least, there is a two-fold ownership of the graffiti; the copyright and intellectual property rights are retained by the artist but the right to the tangible piece of art (the actual painted wall or building) is vested in the property owner because of their legal title to the building or ‘canvas’. This is not a comfortable position but it appears to be the only answer until there is a legal challenge from a graffiti artist which is unlikely as anonymity is important to graffiti artists because of the legal ramifications associated with the act of graffiti (criminal damage and vandalism). It is therefore unlikely the theoretical two-fold ownership distinction will receive a practical determination.

Certainly the act of spray painting a property owner’s wall is illegal and it is likely to be accepted by the graffiti artist that the property owner has the right to rectify the property by painting over the image, but the key question is whether the owner of the property has the right to sell the image?

Banksy has certainly expressed distaste towards the sale of his art as he clearly feels his imagery is contextualised by its position and surroundings and is to be enjoyed by people in those surroundings but his continued anonymity has overridden any desire to bring a legal challenge. Furthermore, graffiti, or at least the unsanctioned graffiti produced by Banksy, is not for the purpose of making money, it is to express and impart political and social commentary through an artistic medium suggesting that selling a Banksy goes against the very essence and motivation behind his art. Some people have suggested it is the location of Banksy’s art that adds to the value of the artwork and to remove it for sale makes it worthless. Although a reasoned suggestion, and one that would be well-placed in a perfect world, it is clear collectors do not necessarily share this view as can be seen in the guide price on the Miami auctions site. Commercial value clearly trumping artistic credibility!

Quite clearly anyone who has a Banksy sprayed on their building is quids-in but hopefully they have the sense to leave it where it is and let it be enjoyed in the context of its surroundings and as the artist intended.

All information is correct on the date of posting.