Recently an image of a rodent which had the marks of Bansky’s work was sprayed on the clock face of an old HSBC building in New York. A few days later the graffiti had been removed by the developer of the building before the structure was demolished. Many of Banksy’s street work belong to private landlords, not the public. The removal and the sale of the art may be controversial but is unlikely to be illegal. In the US, in the absence of any contract or agreement with the property owner Banksy art belongs to the owner of the building on which his art appears.
In the UK, Banksy’s mural “Art Buff” appeared on the back of a museum arcade in Folkstone during an art festival. The tenant had a lease of the building (including external parts) with standard repair and reinstatement obligations. The exterior wall was often covered with graffiti and painted over by the tenant. On the occasion in question, it was adorned with a Banksy mural. A month after it appeared, the tenant arranged for the mural to be cut out of the wall without the landlord’s permission and knowledge and sent to the US for sale.
The landlord, Creative Foundation, took legal action to seek the return of the graffiti work. One of the issues that the court needed to consider was who owned the art work. The court found in favour of the landlord and that it owned the work. The landlord obtained an injunction to prevent the tenant from selling or dealing with it.
When it comes to ownership of art in the UK, an artist owns intangible rights of copyright and intellectual property but the art itself belongs to the owner of the private property, canvas or backdrop. Even if Banksy’s art work could be viewed to be criminal damage to property, he could still retain the rights to his work.
The exhibition called “Stealing Banksy” displayed the artist’s work on a community centre’s walls. An issue which was raised was whether the walls could be regarded as tangible objects and whether in fact therefore the community centre could argue it was the owner of the artwork.
Competing rights of ownership exist between an artist’s moral rights in his work and the rights of the property owner on whose building the art is created. Banksy may be able to argue that despite the legal position that a piece of art belongs to the owner of the property, he has a right to the art due to its cultural and financial value. Academics have argued that Banksy’s murals form part of Britain’s heritage and therefore should be given legal protection. A possible way to achieve this could be for Banksy to submit an application for the work to be listed under the Listed Buildings Act on the basis of its significance.
The Copyright, Design and Patent Act 1988 introduced the concept of moral rights in the UK. These protect the personal relationship between an artist and their work even if he no longer owns the work, or the copyright in the work. Moral rights concern the creator’s right to be properly attributed or credited, and the protection of their work from derogatory treatment can include the right to publish anonymously or the right to integrity of work. Banksy could argue that he paints his art on-site and therefore removing it would be a breach of his moral right to integrity of his work. However as his art is a result of damage to property, the question of whether this undermines the enforceability of his moral rights can be questioned.
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