Art Crime Case Study – Who Owns My Banksy?

It is increasingly the case these days that cleverly placed, intelligent, attractive and sometimes politically pertinent street art appears on the side of buildings throughout the world; most of these are anonymous, but some street artists, such as Banksy, have become household names and their works have in turn developed a great deal of cachet. But who owns the artwork – and if it’s on the side of a building, can it be sold at all?

Some people have got round this by arguing that the owner of the building owns the artwork on it, and if they choose to remove the brickwork/plasterwork on which the art is situated in order to transport it, they are entitled to do so. A recent case in the High Court, The Creative Foundation vs. Dreamland Leisure Limited, dealt with a similar point in relation to the Banksy mural called “Art Buff”.

art buff

The question the Court had to consider was a narrow one and related primarily to the ownership of the wall on which the mural was painted; the Court at all times considered that the copyright in the image belonged to Banksy. Dreamland were the tenants of the building on which Art Buff was painted, and the Foundation were the landlords. In order to protect the mural, Dreamland arranged to cover it with Perspex but, having been advised that it could be worth a substantial amount of money if it were sold, arranged to have that section of the wall removed in readiness for the artwork to be sold. The landlords sued, arguing that Dreamland were not entitled to damage the fabric of the building despite it being part of their lease, and further that the painting was technically the property of the landlord and therefore Dreamland were not entitled to sell it. After a considerable amount of deliberation, the Court found in the Foundation’s favour, and the artwork was returned to them; they intend to put it on display in Kent at an early opportunity.

But this case raised the question of who actually OWNED the Banksy. Although it seems at first glance that the question has been answered in favour of the owner of the building on which the artwork is found, there are possible exceptions. For example, Banksy famously left a mural on the contentious wall in Israel; presumably, as the owners of the wall, the artwork would belong to the State of Israel, but as the artwork was on the Palestinian side, as long as it’s not removed, can they protect their asset?

The reason why I ask is this – all walls have two sides and most property agreements allow that one side belongs to the tenant and one side to the landlord. What I mean is this – my landlord owns my house, but I’m allowed to decorate the inside how I like as long as I make good* before I leave.** But as long as I am there and not interfering with the landlord’s structure, basically, I can put what I like on the walls. So if I have a Banksy on the inside, on MY SIDE of the wall, as long as I don’t knock the wall down, the landlord doesn’t have to know. Right?

Almost.

I’d be well advised to declare my Banksy as soon as it appeared, because I wouldn’t be allowed to take it with me when I move – as removing it would cause damage to the landlord’s structure and would then be considered by the Court to be their property. That way, the landlord and I could come to some arrangement whereby I could be compensated for the loss of my asset; perhaps a percentage of the income the landlord would get from exhibiting it.*** But if the mural is on the outside of the wall, open to the elements, I really have no claim to it at all.

So going back to the question of the Banksy on the Israeli border wall – what are the chances of the landlords and tenants ever sorting out that ownership question? Personally I would err on the side of the Israelis; and frankly I’m amazed that they haven’t already removed that panel and stuck it in a museum somewhere for wealthy people to gawp at. So much more convenient doing things that way than having to travel to the middle of Gaza.

* “Making good” usually means cleaning, repairing any minor damage and ensuring that the house is in good order. If you have decorated the inside without telling your landlord first, you may be required to redecorate to the landlord’s tastes when you leave.

** If you own a flat in a building which is owned by a third party, the same principles apply although making good is entirely up to you. Your lease will dictate what parts you own and are responsible for.

*** It’s just a thought, if I ever invite Banksy round for tea and get him to leave a calling card in the bathroom or something.

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