Two big art law stories have made global headlines over the past month and it would be remiss not to cover at least one of them in this column. So let’s begin with the Banksy that arrived overnight on the wall of the Royal Courts of Justice in London on 8 September and was then “removed” two days later.
Like ice sculptures and castles of sand, this Banksy has become an evanescent artwork. And aside from its legal subject matter—a bewigged judge beating down a protestor—what are the legalities of the whole affair?
The first point relates to the illegality of affixing paint on the wall of a building without the owner’s consent, which in most cases constitutes the offence of criminal damage, subject to a maximum penalty in England of ten years behind bars. Because this wasn’t just any old building but a Grade I listed building, the sentencing guidelines would instruct a judge to impose on a convicted offender a longer sentence within this range. Some reporting has said that if the “real Banksy” is found and prosecuted his cherished mask of anonymity would surely fall. Food for thought.
The second legal point relates to the intellectual property (IP) in the image. With copyright, the “author” of a work of visual art benefits from a right to stop others from making unauthorised reproductions. Does Banksy benefit from this right, even though the image might have been created illegally? In principle, yes—provided the work, for the purposes of copyright law, is considered sufficiently “original”. I doubt anyone would question the originality of a Banksy!
However, even if there is copyright in the image, a court might not enforce it on the basis that to do so could be seen as contrary to the public interest (meaning, it might encourage others to break the law by creating more works in this way). But there is no guarantee.
Also, if anyone wants to reproduce images of the work, then the fair dealing exceptions in UK copyright law might protect such activities, provided they’re for purposes such as news reporting or critical commentary. So even if copyright does subsist in a work of street art like this, there appear to be significant workarounds.
It’s likely a moot point: Banksy has stated in print that “copyright is for losers”. That said, anyone who assumes his works are completely free of IP enforcement should think again. His company Pest Control registers his commercial works for Artist’s Resale Right royalties and has also been in a bitter dispute around registered EU trademarks for the past few years.
There is another, more theoretical point about moral rights in a Banksy. Moral rights exist for copyright-protected works, allowing creators to stop any mistreatment of the work that might negatively affect their honour or reputation. Could it be said that painting over his work would harm his honour or reputation? Probably not. On the contrary, the covering up seems to contribute to his aura as a man of mystery who likes to play fast and loose with the law.
The other recent art law story was the discovery of “Contessa Colleoni” in an online sales catalogue of a house, a work that had been looted from a Jewish dealer in Nazi-occupied Amsterdam in 1940. I have run out of words, so you will have to wait until a later issue to read more about this. Besides, the story is developing, with the local police now involved.
So with a disappearing Banksy and a reappearing Contessa, the world of art law has not been short of thought-provoking material.
