Tuesday, 31 May 2016

Who owns a Banksy mural?

The late Sir Hugh Laddie famously became a bit fed up with having to deal with general Chancery Division business, like landlord and tenant matters, when he was the Patents Court judge. But he'd probably have been perfectly happy with a dispute over the ownership of a wall, as in The Creative Foundation v Dreamland Leisure Ltd & Ors [2015] EWHC 2556 (Ch) (11 September 2015).

Separating intellectual property from the concrete items in or on which it is carried or displayed is a big conceptual problem for anyone coming fresh to the topic. A literary work is an abstract matter, separate from but related to the book in which it is printed. A painting likewise: ownership of the canvas does not confer ownership of the copyright, though provided the legal formalities are observed the two can certainly stay in the same ownership. However, this analysis rather assumes that the artist owned the canvas at the time - or at least had the right to apply paint to it. What if she didn't? And what (if it makes any difference) if it wasn't canvas, but a wall?

The growth of street art, and the growth of the respectability of street art too, has resulted in new challenges to the law. The intersection of intellectual property and landlord and tenant law would surely have appealed to Mr Justice Laddie, as it seems to have done to Mr Justice Arnold. The topic is discussed in greater detail in this article on the City University blog, by Enrico Bonadio.

Banksy (because of course it was he) created the mural in suit in Folkestone during the town's triennial arts festival in 2014. The organiser of the festival, The Creative Foundation, acquired the rights to the painting from the landlord, but the tenant removed it, arguing that this was an incident of its obligations to maintain the premises. It further argued that it had become the owner of the painting, but instead of disposing of  it at the local tip as one might expect the repairer of a defaced wall to do, they shipped it to the United States where it was to be auctioned.

Mr Justice Arnold had no difficulty in deciding that the painting had become part of the fabric of the building and therefore was the property of the landlord (who had transferred ownership to the Foundation). On being removed from the building, the claimant argued, the bricks and mortar (and paint) became once again the chattels which they had been before they were made into a wall and incorporated into a piece of real property, and section 2 of the Torts (Interference with Goods) Act 1977 came into play, allowing the court to order delivery up. Without referring expressly to the 1977 Act, the judge did just that.

The judgment should make it more difficult for people to remove murals from property they do not own - although in practical terms it is surely significant that Banksies, one removed from their original sites, seem to cross the Atlantic pretty quickly to be sold by auction beyond the effective reach of the English courts.

As for copyright, Mr Justice Arnold also had no difficulty in recognising that Banksy owned it in the work in question. Given that he is in the habit of painting on other people's canvasses, an activity which in the law's humourless way could be counted as criminal damage (though I doubt it would ever give rise to a complaint), that is a relevant point. Glyn v Weston tells us that copyright will be withheld on public policy grounds from immoral works, and works the creation of which involves the commission of an offence might well be treated the same way - although the new owner of the painting (the owner of the newly-painted wall) will usually give retrospective permission for it. In the US, as Dr Bonadio (who incidentally calls Arnold J "Justice Arnold", thus promoting him to the Supreme Court) notes, graffiti artists would probably be denied copyright protection under the "clean hands" doctrine.

A graffiti-sprayer with dirty hands - there's an interesting idea ...

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