The rise to fame of street artist Banksy has thrown up a few interesting legal and moral questions over time, so again recently when the High Court had to decide the question who owned a Banksy mural (Art Buff). The work had turned up overnight on the back of an amusement arcade in Folkestone during the Folkestone Triennial art festival in September 2014 but then was cut out from the wall by the tenant of the building and offered for sale in the United States. (There is a company specialising in the removal of Banksy and other street artists’ works, aptly named ‘bankrobber’).
One man’s street art is of course another’s graffiti vandalism and, Banksy or not, English laws, such as the Anti-Social Behaviour Act 2003 and the Clean Neighbourhoods and Environment Act 2005, criminalise unauthorised graffiti and street art – it just so happens that Banksy murals are highly valued and worth a lot of money. In other words, the market decides what is vandalism and what is art? However, the criminalisation of street art is one of the reasons why street artists by and large prefer to operate incognito. This in turn gives rise to interesting questions about copyright protection in the original work.
Street art is often a political and social statement specific to the place and time which provide its context, freely accessible, and can quickly become popular and a local focus point. The argument is therefore often made that it should actually belong to the community in whose midst it was placed. This may be the reason why, when another Banksy work (Slave Labour) disappeared from the side of a building in North London in 2012 and also resurfaced on an auction website in the United States, local residents and the council started a public campaign for its return.
From a legal point of view, the obvious answer to the ownership questions might be to say that the work is owned by the owner of the wall on which it was sprayed. However, the position was less clear in the Art Buff case, where the property was leased to a tenant who was obliged under the terms of the lease to remove the graffiti. In cases where the property is let to a tenant, the question of who owns the mural once removed will therefore depend in the first instance on the terms of the lease.
In Art Buff, the charity organisers of the art festival had taken an assignment of the claim for return of the mural from the landlord. While there was no answer in the lease or legal precedent who owned the mural once removed from the building, the court found that the landlord as owner of the building had the better claim to ownership of the mural. Art Buff will now be returned to Folkestone where it will once more go on public display.
This article was originally published in Discover Germany and can be found here.
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