We know him so well, and yet we know him not at all. Banksy’s iconic images, his famous pranks and his politically-inspired street art are known the world over, yet he remains a shadowy enigma. Operating through the company Pest Control, the person (or persons) behind the Banksy brand have successfully maintained their anonymity over decades. An impressive feat in many ways, but one which has frustrated many a would-be Banksy owner, keen to get behind the corporate façade to the artist himself.

In the latest chapter in this long-running saga, two collectors are reported by Dalya Alberge in the Guardian to be taking legal action against Pest Control for its failure to provide its authentication service as contracted. The claimants apparently purchased the work, a print entitled Monkey Queen, from the estate of a known Banksy collector for £30,000 in 2020, then sent it to the company for authentication. Having received no answer from Pest Control in three years, they are now apparently suing for breach of contract.

The precise legal grounds for the claim are not clear, though the three-year delay suggests an approach focused on breach of a core performance obligation. A brief review of Pest Control’s current terms and conditions for the authentication service, however, suggests this may be somewhat difficult to pin down. In return for what seems like quite a modest fee (£100 for prints and £150 for original canvases), the company agrees to provide an inspection and assessment service whereby it “aims to inspect the artwork and return it to you within 90 days from delivery” (8.5) having “aimed” to make an “initial assessment” within 60 days (6).  The customer is warned in each case, however, that “this may take longer to complete”. As you might imagine, the company retains sole discretion over any authentication decision and is not obliged to provide reasons if it rejects the work (10).

If the hurdle of establishing breach of those rather vague obligations is met, there are further challenges for a claimant. Pest Control’s liability is limited to the lower of the purchase price of the relevant artwork or £1million (18) and liability for indirect damages (such as loss of profits, loss of sales or business) are excluded (20-22). Whilst exclusions of this nature can sometimes be vulnerable to challenge (if they fail a ‘reasonableness’ test required by the UK’s Unfair Contract Terms Act 1977), the bar is set relatively high, certainly in contracts between business parties. Were they to hold fast, it is difficult to see what claimants in a case such as this might hope to gain financially. By its nature, their loss would seem to fall squarely into the excluded ‘indirect’ or ‘consequential’ categories, being the loss of opportunity to sell the work on for a profit as a genuine Banksy.

Broom Wielding Rat by Banksy, New Orleans

Some of the claimants’ comments (as quoted in the Guardian article) raise other issues worth a moment’s further thought. There is mention of a “claim on the estate the piece was bought from”, should it be assessed as inauthentic. Such a claim would almost certainly be as, if not more, challenging in the absence of a clear and unambiguous authenticity warranty in the purchase contract from the selling estate. It’s possible the buyers managed to secure that, of course, but even the bravest of sellers might think twice about such a risky commitment. Banksy fakes are not uncommon: only last week there were reports of arrests in Spain of members of a crime ring allegedly selling fake Banksy prints together with forged ‘authenticity certificates’ in some cases.  In the absence of such a guarantee of authenticity, the case law of recent years suggests that the chances of claimants in these circumstances are rather slim (though in the main, the cases relate to older works where the issues around authentication are a little different from works by living artists).*

Another telling comment from one of the claimants, Nicky Katz, reflects the frustration shared by many art collectors at the power often seen to be wielded by authentication boards. He expresses his ‘disappointment’ that Banksy has made it “impossible for anyone to validate a piece of his work without his certificate”. But with such power comes risk, and one wonders whether the current case will give Pest Control pause for thought about its position going forwards. Litigation on similar grounds has cost the boards authenticating the likes of Andy Warhol, Agnes Martin, Jean-Michel Basquiat and Roy Lichtenstein dearly, leading to the dissolution of those boards in the latter two cases.*

Thinking about future possibilities, one option for authenticators like Pest Control might be to look to new technologies to provide greater security. Blockchains (essentially powerful databases which record real time data in immutable form) have been much hyped within the art world in recent years as providing solutions to provenance and attribution uncertainties. Indeed, a brief web search reveals a surprising number of businesses offering to link physical artworks with digital fingerprints, giving peace of mind to all stakeholders that a work is authentic and has a traceable and transparent transaction history. One benefit for Pest Control might be that Banksy’s anonymity could be preserved, with the digital record being linked to the company without the need for the artist to reveal his identity personally. It is early days for this new technology however, and the role for blockchain within the authenticity matrix is yet to be proven. Whilst there are promising signs, any database is only as good as the data introduced to it and remains vulnerable to fraud and bad actors. It may be some time before market buy-in develops to a level which will allow for any real impact to be felt.

It remains to be seen how the current case will progress – and indeed, whether it will require a line to be drawn, finally, under the Banksy mystery. The lengths to which the Banksy team has gone for so long to preserve anonymity suggests they will do all they can to avoid revealing the artist behind some of the contemporary street art scene’s best-known images. Perhaps a quiet settlement will be reached, as so often happens in art-related cases. Whilst this is probably best for the parties in most instances, the prospect of a court deliberating on the fascinating issues raised in a case like this is an enticing one. We’ll be sure to keep this case on our radar and report on progress as it arises.

*Some of the older cases are discussed in this article by Isabel Paintin in (2015) Art Antiquity and Law 101.

*These cases are discussed by Megan Noh in this article in (2016) Art Antiquity and Law 291.

Image Credits:

Banksy, Broom Rat, 2008, CC 2.0 via Wikimedia Commons.