THE BLOG

Who Owns a Banksy?

05/06/2014 17:08 BST | Updated 05/08/2014 10:59 BST

Banksy is one of the few people who have been able to popularly harmonise the terms 'graffiti' and 'artist' and his work is treasured around the world from the West Bank to Bristol. Yet Banksy's fame brings a headache to would-be art dealers and community leaders the world over: just who owns a Banksy?

In April this year an exhibition titled Stealing Banksy was held in London, it showcased the artist's work, which had been removed from the walls where it had been created. Banksy condemned the exhibition on his website, but not without a little humour writing: "I think it's disgusting people are allowed to go around displaying art on walls without permission."

When it comes to ownership of art, the law states that the artist owns the intangible rights of copyright and intellectual property but the tangible art belongs to whoever owns the canvas or backdrop. The issue here in Banky's case is that community centre walls are the tangible object rather than a canvas.

The fact that the piece of art might be considered criminal damage does not necessarily interfere with these intangible rights. Banksy could be convicted of criminal damage but it doesn't mean he relinquishes all rights in the art.

The recent Bristol Boys Club case where 'Mobile Lovers' has appeared is a good example. After the piece appeared sprayed on a piece of plywood attached to a public wall outside the boys club it was removed by Bristol City Council, who claimed ownership and displayed the piece in Bristol museum. Subsequently Banksy sent the owner of the club Dennis Stinchcombe a letter authenticating the work and indicating that Mr Stinchcombe should 'do what you feel is right with the piece'.

Banksy's right of ownership to his work is balanced with the right of the owner of the property. Even though the council could paint over the art work because they own the wall and Banksy's actions were criminal, selling it is not considered to be the same thing.

The Bristol Post polled 5000 readers asking whether the Mobile Lovers piece should be kept at Bristol Museum or returned to the Bristol Boys' club to be sold at auction. Interestingly the poll was split down the middle, perhaps because the argument has never been tested before.

The notoriety and value of Banksy's artwork means the argument that the tangible art belongs to whoever owns the canvas seems unfair. It's unlikely to have been tested before, with graffiti artists typically working on an anonymous basis to avoid criminal prosecution. Additionally, most graffiti artists do not create work worth as much as a Banksy on the art market so this hasn't been an issue until now.

Even though Banksy has publicly come out in support of Bristol Boys Club to retain the work, unless he took the matter to court to argue that the tangible piece of art belongs to him rather than the owner of the wall, it is not legally speaking his to give.

Banksy might, however, be able to get a positive result at a case hearing if he chose to contest for a moral right to paternity and integrity over the work. This issue has yet to be tested but it would involve Banksy arguing that, despite the legal position stated above (i.e. that the tangible piece of art belongs to the owner of the wall), he also has a right to the tangible artwork due to its cultural and financial value.

A moral right can include the right to publish anonymously or the right to the integrity of the work. Preserving the integrity could be argued to include there being no alteration to the work or distortion. Banksy could argue that he paints his art in-situ and removing it would be a breach of his moral right to integrity of the work. Moral rights were introduced into UK law by the Copyright, Designs and Patents Act 1988. However, the fact that his art is as a result of a criminal offence, means it remains to be seen how unlawfulness or illegality of his actions may undermine his ability to enforce his IP rights.

'Mobile Lovers' obviously has great commercial value in the art market and it is this factor which seems to make it unfair for the owner of the canvas to just sell it, if the artist does not want them to. But in the Bristol Boys Club example Banksy has indicated that the work is a gift to be sold to pay for the running of the club. The Banksy case is an exceptional situation in the UK and the matter of ownership is unlikely to go away unless Banksy enforces his rights. This is pretty unlikely if he wants to retain his anonymity.

So far matters seem to have been left as a gentleman's agreement between the Mayor of Bristol, Mr Stinchcombe and Banksy.