Who owns a Banksy mural?

art buffA recent case in the English High Court has seen a senior IP judge, Mr Justice Arnold, deciding on the ownership of a Banksy mural that was removed from the wall of a building.

The artist known as Banksy is famous for:

(a) retaining his anonymity;

(b) creating artwork in public places that could be viewed as graffiti, and sometimes has a political message, and which tends to have a high commercial value (hundreds of thousands of pounds); and

(c) causing his works suddenly to appear in unexpected places.

In recent years, a trend has developed of removing Banksy works from the walls on which they have been painted, and selling them at auction, sometimes to raise money for good causes.

The present case, The Creative Foundation v Dreamland Leisure Limited and others [2015] EWHC 2556 (Ch) concerns a mural known as Art Buff that appeared on the wall of a building in Folkestone, a seaside town in England.

art buff 2The tenants of the building, Dreamland Leisure, removed the mural, which involved taking a layer of the wall away, and sought to sell it at auction in the United States. The Creative Foundation sought an order for delivery up of the mural on the basis that it belonged to The Creative Foundation as assignee of the landlord’s interest.

In a case like this, we need to distinguish between the work of art, the copyright in the work, and the slice of wall on which it is painted. As Arnold J said in his judgment:

I should explain before proceeding further that, when I refer to the Mural in this judgment, I am generally referring both to the physical object and to the artistic work fixed on it. For the avoidance of doubt, I am not concerned with the copyright in the artistic work, which prima facie belongs to Banksy.

Thus, Arnold J found himself deciding a case on the respective rights of a landlord (lessor)  and a tenant (lessee) to materials that originally formed part of the demised premises but, when removed from the building, “revert to the status of chattels”. This is not part of the usual legal diet of an eminent IP judge.

After reviewing the cases, and the terms that could be implied into a lease of (real) property, he concluded:

In my judgment the term which is to be implied is that the chattel becomes the property of the Lessor. My reasons are as follows.

First, I consider that the default position is that every part of the property belongs to the Lessor. The Lessee only has a tenancy for a period of time. Thus it is for the Lessee show that it is proper to imply into the Lease a term which leads to a different result.

Secondly, in my view the mere fact that the Lessee is discharging its repairing obligation does not lead to the implication that it acquires ownership of such a chattel. Dreamland’s argument is based upon the Lessee’s need to be able to remove items generated by the act of repair from the premises. But that would only justify the implication of a term dealing with permission to remove (and, where appropriate, dispose of) such items. It does not justify the implication of a term transferring ownership of the items…

Thirdly, even if a term may be implied with respect to the ownership of (i) waste or (ii) chattels with no more than scrap or salvage value, it does not follow that it should be implied with respect to the ownership of a chattel with substantial value. Such a term would not be necessary, would not go without saying and would not be one that would satisfy the officious bystander test.

Fourthly, I do not consider that it makes any difference that the value is attributable to the spontaneous actions of a third party. It is fair to say that, whatever solution is adopted, one party gets a windfall. But who has the better right to that windfall? In my view it is the Lessor. …

Accordingly, I conclude that the Foundation is correct that the defence advanced in paragraph 13 of the Defence is unsustainable as a matter of law.

For the reasons given above, I conclude that the Foundation is entitled to summary judgment on its claim against Dreamland for delivery up of the Mural.

So, now we know. Though one might have expected copyright law to feature prominently in a dispute over a valuable artwork, in fact it came down to implying terms about the ownership of builders’ rubble in a routine property lease. IP Draughts wonders whether the drafters of property leases will, in future, include standard terms to deal with the ownership of works of art that are incorporated into the leased property without the knowledge or permission of either lessor or lessee.

The back story to this dispute is also interesting. It seems that Art Buff failed to sell at auction in the USA because its authenticity as a Banksy work had not been certified by a body associated with Banksy, known as Pest Control. Thus, questions of property law and copyright law were ultimately secondary to questions of provenance.

 

 

 

2 Comments

Filed under General Commercial, Intellectual Property, Legal Updates

2 responses to “Who owns a Banksy mural?

  1. vrkoven

    This judgment, which has been noticed globally, raises a number of questions that deserved better handling than they received from Arnold J.

    There are two copyright(ish) issues: first, what, assuming Banksy retains the copyright, does that say about the original object in which it is embodied. The US has the “first sale doctrine” that says once the copyright owner has sold a copy of the work, the owner of the copy can do whatever (s)he likes with that copy, other than exercise the other exclusive rights of the copyright owner. I presume there is a similar doctrine in the UK? If so, what does it say about copies that are *not* transferred by the author? Can one reasonably infer that Banksy transferred the (sole) copy to anyone, without evidence?

    Second, what about the artist’s moral rights? Even the very puny protection they get in the US includes the right of the artist to be notified when artwork affixed to a building is to be removed or obliterated, so that (s)he can arrange for its safe removal. As between the author and the property owner, while the owner can destroy a work that cannot readily be removed, the situation here manifestly is otherwise, and the author’s rights would prevail over the building owner’s if removal was desired (and paid for by the author).

    The discussion of the relative rights of the tenant and landlord was also inadequate. The word “mere” in a judicial opinion or brief, like the word “clearly,” should be viewed with the utmost suspicion. Even though I think Arnold J. came to the right result, he should have discussed *why* the landlord should prevail as a matter of policy (since that is really what he was determining). I think the answer has to do with the accrual of improvements in the property to the landlord and the ephemeral tenure of a tenant; this would be as true of a rare and valuable plant growing on the wall (or a white truffle growing on its foundation) as an artwork. But usually this discussion has to do with fixtures, and some consideration of why a mural is more like a fixture than a removable framed painting, even though for moral rights purposes the argument might go the other way. These are not self-evident results, and Arnold J. did the law and the litigants a disservice by not explaining his result.

    • Thanks, Vance, very interesting.

      I suspect the main reason that copyright issues were not addressed is that Banksy chose not to participate in the case, thereby retaining both his anonymity and his air of mystery, not to mention avoiding potential actions for damage to people’s walls.

      As for the lack of analysis of real property issues, I suspect that arose because Arnold J relied on and chose between counsels’ arguments rather than bringing any independent insight into the subject, bearing in mind his narrow but deep specialism in IP law.

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