As reported far and wide, last Friday a High Court decision was rendered in a case involving a piece of Banksy street art called ‘Art Buff’, which had been stripped off a wall in Folkestone, England, and sent to the US for sale. The work had been added to the side of a building in 2014, in conjunction with a town festival. The tenants of the building (and not the owners) were the ones who then removed it. Last Friday’s judgment focused on the question of whether the tenants had the right to remove the artwork and send it off to be sold. According to the judge, they did not.
While the judgment (which does not yet appear available online) focused on the issues related to the rights of freeholders and leaseholders, an overlooked issue in the case related to the moral rights of the original creator. Banksy may be the last person to use the courts to assert his rights. However, there’s an interesting hypothetical question as to whether his moral rights could have been raised in the case. Moral rights are personality rights, intended to protect, amongst other things, the integrity of a work of art. Would tearing street art off a wall qualify as an infringement?
It may feel like an infringement, but in the UK, the protection of the integrity of a work – known more cumbersomely as the ‘right to object to derogatory treatment’ – requires the act to qualify as a ‘treatment’: that is, an addition, deletion or alteration to the original work (an adaptation can also qualify, though not relevant in this case). There has been debate as to whether the mere placement of a work can constitute ‘treatment’, such as placing a religiously inspired painting in an exhibition surrounded by pornographic images. Many scholars think not…
But placement is one thing. Ripping from its fabric (without consent), then offering it for sale, is quite another. Arguably, tearing from the wall may constitute the ‘deletion’ of an important element of the work, while moving it from the street to a sale showroom could be an ‘alteration’ (of the context, of the meaning, of the message). The act would also have to be ‘derogatory’ (which crucially requires it to be ‘prejudicial to the honour or reputation of the artist’), which in this case seems somewhat clear: Banksy, known as a street artist who spurns commerciality, would have his reputation sabotaged by the act of dismantling and selling one of his works in such a way.
But even if such a claim were possible, would it ever be made? Highly unlikely. For one it would go against the persona that Banksy has crafted for himself. Plus to bring an action to enforce a personality right, may indeed require one to ‘unveil’ one’s personality, something the great man of mystery simply won’t do. Nonetheless, the fact that this was the first example of a court ordering the return of a Banksy to its place of origin may point the way ahead. Maybe we’ll see actions on the part of other street artists, looking to assert their moral rights over their detached creations. Beware to ‘owners’ of removed street art: the hour of reckoning may be fast approaching!
Congratulations to Creative Foundation for bringing (and winning) the case. They were supported by a solid legal team which included IAL friends and members Boodle Hatfield. Tim Maxwell, partner at the firm and leading solicitor in the case, will speak to the IAL about the ins and outs of the case on 28 November in London. The event is open to all.
Photo: Gareth Fuller/PA, ‘Art Buff by Banksy’