An interesting story has made it out of Bristol, the home city (apparently) of the elusive street artist Banksy. Back in 2009, Banksy had collaborated with the Bristol Museum and Art Gallery on an exhibition called Banksy versus Bristol Museum. In true Banksy style, it featured a burnt-out ice cream van on the Museum’s front steps and fishfingers floating in a goldfish bowl. Most famous of all was the sculpture of an angel, which stands in the Museum’s sculpture hall, over whose head Banksy had dumped a can of pink paint, leaving the can in place. This became known as ‘Paint Pot Angel’. In fact, the piece became so iconic that the Museum has left it untouched over the past eight years.
More recently, the Museum had started selling small prints of this adulterated angel at £5 a pop. Then an American buyer contacted Banksy, only to learn that the artist had in no way autorised the prints. A minor uproar ensued and the Museum decided to withdraw the prints and release an apology. While it had apparently obtained permission from the artist to photograph the sculpture for the gallery guide, the permission did not extend to making these sorts of wide-scale reproductions.
The first question we can ask is whether there is intellectual property in Banksy’s creation. If so, this might allow him, as its ‘author’, to stop others from making unauthorised reproductions. The point may be debatable, but I think it’s fairly certain that Banksy’s rendering of the older statue would qualify as a ‘sculpture’ for the purposes of copyright law. Therefore it would be protected and therefore he could block the making or selling of prints (i.e. two-dimensional copies of his original work).
However, it’s not quite so simple. While he may not have given express consent to the Museum to make reproductions beyond those in the guide, it is possible that an implied licence existed, whereby an unwritten term allowed the Museum, in certain circumstances, to make and sell copies of the work. There is also the possibility, accepted by the courts on occasion, that the Museum obtained something called ‘beneficial copyright ownership’, which would allow it to make copies without having to secure consent from the artist at each step. Finally, there exists in the UK ‘freedom of panorama’ which can allow pictures to be made of sculptures kept permanently in buildings open to the public without infringing copyright.
Be that as it may, this matter isn’t really about ‘the law’. There’s far more at stake when an artist refuses to recognise, or indeed withdraws, authentication of a work. If an artist had made a painting that, years later, he or she wanted to disown (one thinks of early works by Lucian Freud), there is nothing that would specifically allow the artist to stop others from holding onto it, displaying it or indeed selling it. But if the artist withdraws authentication for the work, then the problem is not about the artist’s legal rights, but rather about how the market responds. The question to be asked is: what is the commercial effect of a withdrawal? Usually, the impact is substantial. Who wants to buy a painting that the artist has refused to recognise? While one or two buyers may exist for such a piece, it’s unlikely to fetch high prices at auction.
So the artist, despite being somewhat limited in legal remedies, still plays a critical role in the life of a work. This is especially true of Banksy. The market responds to his authentication – and in many respects answers only to this. Other players who display his work, such as shopowners or galleries, will usually follow suit. And it seems the Museum in this case didn’t want to ruffle the feathers of the shadowy man.
If you are interested in learning more about the intellectual property rights of artists, the IAL offers a three-day course in London each June called the Diploma in Intellectual Property and Collections Management. The next intake will be in June 2018. Dates to be confirmed shortly. For more information, click the above link.