On Friday night in London, Sotheby’s auctioned off a ‘unique’ version of Banksy’s famous image of a young girl reaching for a red balloon. It was the last lot of the Contemporary Art auction in an important week for the London art market, with Frieze London having opened earlier that day. But just as the auctioneer knocked down the piece at £860,000, a beeping was heard and the work on canvas, which was displayed at the back of the room in a frame provided by the artist himself, slowly began to sink down through the bottom of the frame. It was being shredded by an inbuilt mechanism which Banksy has now claimed to have installed several years ago. The shock amongst those in attendance was palpable.
According to the listing for the work at Sotheby’s, it had been bought by the consignor directly from the artist at his warehouse show, Barely Legal, in 2006 (which is, interestingly, the same show featuring in the documentary on Banksy, Exit Through the Gift Shop, which may make those who have seen the film reflect on how this latest manoeuvre fits into the Banksy oeuvre). Now we don’t know who the consignor was. But it may seem surprising that this consignor hadn’t checked the frame in the previous twelve years. Equally surprising too that Sotheby’s hadn’t noticed anything when preparing its condition report. Were there others, beyond the artist himself, who were in on the joke?
Nevertheless, the ‘self-destruction’ of the work brings up some interesting points about auction law. First of all, who actually owned the piece when the shredder began its business? Whoever it was might actually have a right against the artist for destruction of property, usually operative in England through the torts of conversion or trespass to goods. If it was the consignor, there may also be some go-back in the original sale contract from 2006, since a built-in shredder looks an awful lot like an inherent defect, to say the least.
The usual position in auction law is that a new contract is created at the fall of the hammer (i.e. once the auctioneer has accepted the offer of the highest bidder): seen at section 57(2) of the Sale of Goods Act 1979. In that case, the final bidder from Friday might have already been the owner by the time the work passed through the shredder. However, Sotheby’s standard terms and conditions usually make clear that the auctioneer retains absolute and sole discretion to revoke a sale at any time, which would seem to be appropriate here. It is also usual practice for the auction house to withhold title to a piece until the purchase price has been paid. Nevertheless, these points may now need to be addressed more fully in the back offices of Sotheby’s as a result of Friday’s stunt.
Now this may all be one big joke that many are in on. If such is the case, there is no need for alarm. We can all return to our places and continue on as usual. With the thought that the inimitable Banksy has done it once again.
For those interested in other commentary on Banksy works and their relation to different aspects of the law, see the author’s earlier pieces on ‘The Moral Rights in a Banksy‘, ‘Banksy’s Dismaland‘, and ‘Banksy’s Paint Pot Angel‘. But as Banksy has always said, ‘Copyright is for losers (© TM)!’