Is street art – or graffiti – public or private property? Jeremy Erwin outlines a recent case that settled the question for one mural and its famous creator.
In a recent case before the High Court of England and Wales, the court was asked to determine the ownership of a mural known as “Art Buff” created by the famous street artist Banksy. The piece was the focus of a dispute between the tenant of a building and a charity promoting the regeneration of Folkestone in Kent. The landlord of the building had assigned its title to the mural to the charity, who brought the case.
In short, Banksy painted “Art Buff” on a commercial property in Folkestone without the consent of the tenant or the landlord. The tenant of the property, aware that it was a Banksy, severed the section of wall containing the mural from the building and shipped it to the US to be sold at an art fair.
The charity claimed that it was entitled to the mural as it formed part of the "fabric" of the building under the terms of the lease. The bricks and mortar form part of the land, and that on being sprayed, the paint used to create the mural became part of the land. In addition, the charity argued that the tenant was not entitled to remove a section of the wall as this was inconsistent with the nature of a tenancy, and a breach of the lease in any event. Once removed, the charity submitted, the ownership remained with the charity and not with the tenant.
The tenant claimed that it was obliged (or at least entitled) to remove mural on foot of its repairing obligations under the lease - the tenant was required make good any damage to the building and to paint the outside of the building every four years. This was notwithstanding the fact that the mural could have been removed by painting over it, or by chemical or abrasive means. The tenant also argued that once the mural was removed in accordance with its repairing obligations under the lease, it was implied that the mural became the property of the tenant, analogous to a tenant re-decorating a bathroom and being obliged to dispose of the old tiles.
The court held that there was no reasonable prospect of the tenant establishing that it was entitled (let alone obliged) to remove the Banksy mural under the terms of the lease. In addition, the argument that the mural once removed was the property of the tenant was unsustainable as a matter of law. The court also had no difficulty holding that Banksy owned the copyright in the mural.
While it would have been open to the tenant to simply paint over the mural in accordance with its repairing obligations under the lease, clearly that would have rendered at nought the value of the Banksy mural.Back to Full News
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About the Author
Jeremy is a partner in the Commercial & Business team at Hayes solicitors. He practises predominately in insolvency, commercial litigation and dispute resolution, acting for a variety of companies and financial institutions in contract law cases and enforcement and recovery actions in the High Court. He also advises clients in high value complex Commercial Court proceedings.