Legal Drivers

Banksy began his practice as a freehand street graffiti artist, subsequently using stencils to facilitate the swifter execution of work – and thus avoidance of detection and arrest for criminal damage or trespass to other people’s property. He was an urban guerrilla artist, using the built environment as both his canvas and his gallery to convey messages (against war and capitalism and the establishment) to the general public through images and often with text. These chosen ways of delivering his work were significantly driven by legal considerations.

During this inaugural phase of his practice Banksy offered no objects for sale. He subsequently responded to increasing popularity and recognition by the general public (including requests from people wanting – somehow – to own one of his works) by printing on paper or canvas reproductions of his publicly sited images and offering them for sale. In 2009 Banksy established a separate public-facing legal entity to deal with the commercial dimensions of his practice while safeguarding his anonymity: Pest Control Office.

Perhaps the most memorable and widely known of all Banksy’s art and business activities was his uniquely framed Girl with Balloon, 2004/06, shredding incident at Sotheby’s London in October 2018 (Artlaw AM421). Just as his street-art is – and always has been – carefully planned and executed to communicate as effectively as possible with its intended audience at a site-specific location, so it was at Sotheby’s. In this case the chosen location for the key performative element of this auto-destructive conceptual work was a live public auction room, in a world-leading auction house, in an art-market capital city, during a prestigious week in the contemporary art market’s calendar. As ever, Banksy’s chosen way of working evidently considered legal risks: of his being drawn into potential lawsuits between seller and auctioneer, buyer and auctioneer, seller and buyer. Things turned out well for all parties, including Banksy, because the highest bidder/buyer decided not to reject the shredded work, but to complete the auction transaction and pay to own it.

Banksy’s practice and career development have been unique – despite or perhaps because of his jealous guarding of his true personal identity, and skillful avoidance of legal challenges to his public graffiti escapades and art-market subversion. A key feature of his practice is the marked absence of a Banksy signature/tag on all but his earliest publicly sited work. This has led to a recent legal challenge, which in turn has driven Banksy to introduce a new way of working.

In October 2019 Banksy hired the windows of a disused carpet showroom in Croydon to display a ‘range of impractical, bizarre and offensive merchandise’ that could only be bought online from his new brand-extension called Gross Domestic Product (GDP), which promised a ‘disappointing retail experience’. GDP offered 22 different items (some unlimited, others limited editions) ranging from £10 (‘customised black paint can: unlimited’) to £850 (‘replica of Stormzy’s Glastonbury stab vest: one available’). Shoppers could apply to buy one item only by registering their details, and answering a question (used to evaluate their application).

It appears that legal considerations also drove this new way of working: for example, GDP’s ‘Massive Disclaimer’ that ‘this is not a proper shop’ and its use of T&Cs including: ‘Certain images used on this website are reproduced with the express permission of the artist, Banksy. Copyright is retained by the artist and images must not be reproduced without the express written permission of the artist or Pest Control Office Limited. BANKSY, the Girl with a Balloon logo and the Flower Thrower logo are registered EU Trade Marks belonging to Pest Control Office Limited. We use these EU Trade Marks to denote the authenticity of our products and services. Only official products and services are allowed to use these EU Trade Marks, or our other trade marks. You are not permitted to use our EU Trade Marks without our express written approval. Any unauthorised reproduction may result in legal proceedings.’

Banksy’s Pest Control Office did indeed register trade marks from 2014 with the EU Intellectual Property Office (EUIPO). In 2010 a UK-based company ‘specialising in the commercialisation of world-famous street art’, Full Colour Black (FCB), contacted Pest Control offering to pay royalties for its unauthorised photo-reproductions of Banksy’s publicly sited images printed on greetings cards. No agreement was reached; FCB continued its merchandising, and in March 2019 filed a lawsuit with EUIPO claiming ‘revocation and declaration of invalidity’ of Banksy’s registered trade marks.

The basis of such a lawsuit is that ‘an EU trade mark must be put to genuine use in the European Union in the 5 years following its registration. Moreover, use must not be interrupted for over 5 years.’ In other words, FCB claims that Banksy was not selling merchandise carrying his registered Trade Mark brands. Doubtless a key issue in the lawsuit will be whether Banksy’s publicly sited works (not endorsed with his name/signature/tag) are covered by his registered trade mark brands.

Banksy’s lawyer, Mark Stephens, recently commented: ‘Banksy has been forced into the merchandising market. The European trademark categories became his muse. You have a ludicrous court action being met by creative genius. Banksy’s one of the most ripped-off artists in the world. He was being plagiarised by big business. We would see stuff that was out of register, in the wrong colour, or the wrong way around, facing right to left instead of left to right as in the original design. The integrity of the work is being trampled upon, and it’s being done for commercial purposes … He’s quite happy for his work to be used for activism and personal enjoyment. But big corporate groups interested in making a profit pervert the art and take away from its real meanings … This is a range of merchandise which could only be conceived and executed by Banksy.’ FCB says their activity is a ‘legitimate enterprise’ that does not ‘infringe Banksy’s rights in any way’.

It appears that trade mark law considerations have indeed been key drivers for Banksy’s new way of working. But perhaps it would have been more straightforward for Banksy to take legal action against FCB, using copyright law to stop possible violation of his copyrights in publicly sited images. Or perhaps not: a copyright lawsuit requires proof of copyright ownership, which invariably means revealing the personal identity of the author.

© Henry Lydiate 2019

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.