Who is Banksy?
The identity of the artist, world-renowned for his socially critical works, still remains a mystery. All that is known is that he is from Bristol, and the motto of his life is to do good.
A scene from the documentary “Exit Through the Gift Shop”, directed by Banksy (c) 2010 Paranoid Pictures
At the end of the 90s, he began to engage in traditional graffiti – he painted by hand with an aerosol can. But in the early 2000s, Banksy decided to use stencils to cut down on painting time. Street art, if it is created without the appropriate permission of the authorities or the owners of the premises, is illegal, and what distinguishes a good street art artist from a mediocre one is the speed of the work. Banksy himself admitted that he couldn’t draw fast enough, so stencils seemed like a better option.
And this decision of Banksy raised him to the top of street art art – with the use of stencils, his creative ascent began.
In Bristol, when Banksy was not world-famous, the civil services arranged real wars with public organizations – the former wanted to wash away the artist’s drawings, and the latter tried to preserve them.
The mystery of the artist’s real name became an integral part of his PR campaign and Banksy turned into a full-fledged brand. He never showed his real face, and his only media appearance was an interview for his own documentary film Exit through the Gift Shop (2010), but even here he hid himself in the shadows and changed his voice. The picture tells an incredible but true story about how an eccentric bourgeois of French origin living in Los Angeles, who turned into a documentary filmmaker, tried to find Banksy and befriend him. By the way, the picture received an Oscar nomination.
Banksy’s attitude to copyright
«Are you a company that wants to license Banksy’s art for commercial use? Then you’ve come to the right place – you can’t. Only Pest Control has permission to use or license my work. If someone else gave you permission, you don’t have permission. I wrote “copyright for losers” in my (copyrighted) book and still encourage anyone to take and modify my work for their own entertainment, but not for profit or to make it look like I approved something when I didn’t did Thank you»
You can find this information on Banksy’s official website in the Licensing section (https://www.banksy.co.uk/licensing.html).
At the beginning of his career, Banksy refused to recognize the role of copyright in the life of every artist and constantly posted his own works on the Internet for use by other people.
“Copyright is for losers” (Banksy’s 2007 book “Wall and Piece”) is a famous aphorism that belongs to Banksy. However, the days when he did not perceive intellectual property are long gone.
In 2018, Banksy could not resist the flow of souvenir products, fakes and unauthorized sales of his works, and for the first time filed a lawsuit – against the Mudec museum in Milan. The museum was selling postcards and other items with graffiti images as part of the exhibition “Banksy’s art – a visual protest”. The lawsuit came from the Pest Control agency, which buys the artist’s works. Then the court ruled in favor of Banksy.
In addition, the artist’s website wrote in 2018 that numerous exhibitions of Banksy’s work are held without consultation with the artist himself.
However, even then, experts noted that if Banksy continued to file lawsuits, he would face difficulties in determining copyright, since the process requires the disclosure of his real name. This remark of the experts was correct.
In September 2020, Banksy lost a lawsuit against card maker Full Color Black, which prints street art on greeting cards. In their products, they used one of the artist’s most famous images – a monkey dressed in a sandwich board. On some versions of the picture there was an inscription: “Laugh now, but one day we will be in charge.”
Full Color Black who tried to get copyrights for “Rat in Love” and “Holding a Bomb”. The company representing Banksy’s interests has been trying to ban the use of these illustrations since 2018. But lawyers for Full Color Black managed to prove that this work is graffiti placed in a public place that can be photographed and distributed. In court, the company won, because the judges believe that Banksy is acting “in bad faith in registering his works as trademarks.”
According to the European Union Intellectual Property Office (EUIPO), the artist registers his works as trademarks without revealing his identity. Since he cannot be identified as the true owner of the presented works, he has virtually no chance of obtaining rights to the works. After all, anonymity contradicts the copyright law.
After this case, all of Banksy’s works are at risk due to his anonymity. And so it happened, already in 2021, the EUIPO deprived the British street artist of the copyright for his works. It is about the graffiti “Girl with an umbrella” and “Rat with a radar”. EUIPO took this decision because the street art artist refused to reveal his identity.
After Full Color Black began legal proceedings, Banksy opened an online store called Gross Domestic Product to sell his own range of products. But this move was unconvincing for EU examiners.
“And it was only during the course of the current litigation that Banksy began selling the goods, but specifically stated that they were being sold only to overcome non-use of the trademark and not to commercialize the goods,” they wrote in their decision.
“It should be noted that another factor that deserves attention is that he cannot be identified as the undisputed owner of such works because his identity is hidden,” they wrote. “It is no longer possible to establish without doubt that the artist owns any copyright in the graffiti.” The contested (trademark) was filed so that Banksy would have legal rights to the mark, as he cannot invoke copyright, but that is not the function of a trademark.”
Between 2020 and 2021, Banksy lost the copyright for six of his works. Among them were: “Rat in Love”, “Laugh Now”, “Radar Rat”, “Girl with an Umbrella”, “Holding a Bomb” and “Flower Thrower”. But won an appeal on one job.
On November 15, 2022, the artist won an appeal that allowed him to keep the trademark for one of his most popular images, Monkey on a Sandwich Board, while keeping his identity a secret.
In May 2021, the EUIPO’s Invalidity Division invalidated the registration of Banksy’s Monkey image on the grounds of bad faith. The trademark owner appealed, and on October 25, 2022, the Fifth Circuit reversed that decision and dismissed Full Color Black’s cancellation action, ruling not only on (lack of) bad faith, but also on distinctiveness and descriptiveness, which The cancellation department did not consider it.
Through Pest Control Office Limited, Banksy registered 15 EUTMs for individual works of art. Full Color Black filed lawsuits to invalidate at least 7 of them. In 6 cases, the Cancellation Division canceled the marks, finding that they were filed in bad faith. One case was stayed (regarding the refiled “Flower Thrower”) mark, and only one of the 6 cases, the one at issue here, was successfully appealed by Pest Control.
In 2022, Banksy accused the fashion brand Guess of using the image of the “Flower Thrower” in the window of a London store
In an angry Instagram post, the art world prankster invited followers to rob the Guess store on Regent Street in London, writing: “They took advantage of my work that I painted: “They helped themselves to my work without asking how bad it could be if will you do the same to them?”. Guess has yet to respond to the allegations, although store staff have closed the location to visitors, hidden a reproduction of Banksy’s iconic “Flower Thrower” painting in the window and increased security to avoid retaliation from 11.5 million followers of the artist.
In October 2022, the brand announced a new collection in collaboration with Brandalised, a company that licenses recognizable graffiti designs. Mega-collector and Guess co-founder Paul Marciano even called Banksy’s work a “phenomenal influence on popular culture.” It is currently unclear whether or not Banksy was aware of Brandalised’s licensing deal with Guess, although copyright lawyer Liz Ward told BBC News that Brandalised appeared to have “legally acquired Banksy’s work through a third party”.
Banksy and his creative contribution to Ukraine’s fight against the aggressor
The British street artist did not ignore the war in Ukraine. Last fall, he immortalized himself on the walls of Kyiv houses. On November 12, Banksy posted a photo of one of his works on Instagram with the caption “Borodianka, Ukraine.” On the wall of a destroyed high-rise building, the artist depicted a gymnast doing a handstand, leaning on the ruins. This graffiti also appeared on the artist’s official website. In Borodyanka, as well as in Irpen and Kyiv, there are other graffiti that were made by Banksy and the PR service of the artist confirmed his authorship. One of the most discussed works is a boy throwing a judoka on a tatami mat, in which some saw the dictator Putin. The Ministry of Defense of Ukraine posted this image on Twitter with the caption “We are stronger than David, they are weaker than Goliath. Maybe Banksy.”
In December, through the “Legacy of War” fund, Banksy put up for sale 50 art prints of his works for the reconstruction of war-torn Ukraine.
“We are delighted to be able to offer an artistic screen print of the famous British graffiti artist Banksy,” the Foundation’s website says. This international charity supports civilians in war zones. Proceeds from the sale of Banksy’s works will be fully directed to funding humanitarian aid, while the artist assumes all expenses, the organization writes.
Banksy made 50 prints of his works, they are signed by him personally by hand, numbered and mounted in wooden frames. The artist scratched his autograph on the prints of his works with a pizza knife, which made each of them unique. £5,000 (roughly €5,800) plus tax is the cost of one copy, with each buyer entitled to buy only one painting.
Banksy saw the destruction caused by the war in Ukraine with his own eyes in early November. Then he left his mark in Kyiv and its surroundings with new graffiti. The help of charitable organizations made a great impression on the street artist: “In Ukraine, I saw how one of the teams of the Legacy of War foundation provided medical assistance to some people who were very desperate in a bombed-out building. In addition, she provided these people with heaters and drinking water with water. I remembered their friendly faces,” recalls Banksy.
As of today, registration for the opportunity to purchase the artist’s works has already been completed on the Foundation’s website, and the selection of registered applications is underway for the announcement of the winners in the near future. The site received more than 1 million requests (and 3,500 hostile attacks from Russian IP addresses). Those who can hang a unique work of the famous street artist Banksy at home will be selected by a computer program.
The preliminary estimated cost of Banksy’s murals in the Kyiv region may reach more than $1 million.
If the works are sold, for example, at the Sotheby’s auction in London or New York to raise money for charity, the amount can reach up to $10 million.
So, for example, the well-known Guess brand used the work of the artist Flower Thrower without permission for the design of the store, to which Banksy called for the use of the Guess trademark also without any permission. And this is far from the first dispute between famous brands and so-called “street” artists. Let’s try to determine who owns Banksy’s works and whether it is legal to use them for commercial purposes under the laws of Ukraine.
The owner of the murals is a street artist himself
Banksy is the pseudonym of the artist. The works of art in the Kyiv region are not signed by the author, but it can be assumed that Banksy acknowledged the authorship when he published the graffiti on his official social media pages.
And in the absence of other evidence, it is assumed that the author is Banksy (presumption of authorship). In addition, Banksy published a video of how the works were created, thereby once again confirming that it was his work. The fact that the works are published under a pseudonym in no way diminishes the copyright for them, because the creation of works under a pseudonym is provided for in Art. 9-11 Act of copyright and related rights.
Copyright allows artists to demand payment for the use of a work, to decide how to use it, and to prohibit its use.
By default, only the author can dispose of works, including sell them. However, Banksy is an anonymous artist whose interests are represented by Pest Control Office. She registered trademarks for a number of his works.
It seems logical: the artist created the work, he owns the copyright. However, these works are created on someone else’s property and without permission, the author has not determined in any way how to use these works. Therefore, the question arises, does the owner of the property on which the work was created have any rights?
The murals belong to the owner of the house
In addition to the copyright to the work, you should not forget about the ownership of the real estate on which the mural was created.
And here there is a conflict between different rights: the right of ownership of the real estate object, the right of intellectual property, and which right has priority.
On the one hand, it is the owner of the real estate object who can dispose of this object as he wishes, and the artist has no right to violate these rights. On the other hand, the owner of the house, on the wall of which the original work of fine art is embodied, is not allowed to destroy this object without first offering the author of the work a price that does not exceed the cost of the materials spent on its creation.
But here it is possible to classify the artist’s actions as a gift to the owner of the building, without his prior consent (Article 722 of the Civil Code of Ukraine). Therefore, if the owner of the building does not immediately declare a refusal to accept such a gift, the gift is accepted and ownership is transferred to the owner of the building.
The owner is still an artist, because the buildings are destroyed
The fact is that the value of the walls of a destroyed house, without works of art, is close to zero. But as a result of the creation of artworks, the cost of such a wall can reach more than a million dollars.
Ownership is terminated in case of destruction of property (Article 349 of the Civil Code of Ukraine).
That is, the owners of a high-rise building, which was destroyed and of which only one wall remained, on which Banksy’s artwork was made, do not have the right to the artist’s work.
After putting Banksy’s work on the destroyed wall, a new thing was created – an art object that can already be appreciated in a different way. In law, this is called “reworking” (Article 332 of the Civil Code of Ukraine). And in this case, the value of the new thing created (art object) significantly exceeds the value of the material itself (the wall). Therefore, it is the artist who acquires the right of ownership of a new thing. At the same time, the artist undertakes to compensate the owner of the wall for moral damage.
The owner is the administration, because the mural is without an owner
Is it possible to establish for sure who is hiding behind the pseudonym Banksy? Not at the moment. In addition, it is not possible to establish whether Banksy authorized someone to represent his interests in these works. Banksy only published photos and videos on social networks and did not in any way determine how the robots could be used in the future.
In this case, it can be considered that these works of Banksy are an ownerless thing, the real owner of which is unknown. In Ukrainian legislation, these works can be transferred to communal ownership by a court decision (Article 335 of the Civil Code of Ukraine).
For this:
– The local self-government body (administration), on the territory of which art objects are located, must apply for the registration of this immovable property to the body that carries out the state registration of rights to immovable property.
– An announcement is made in the printed mass media about taking ownerless real estate into account.
– One year after registration, an ownerless immovable object may be transferred to communal ownership by a court decision.
– After that, the relevant territorial community can sell these works at an auction.
How Banksy’s works can be used to create products
Commercial use of Banksy’s works is prohibited, his Pest Control Office representative noted:
“You may use Banksy’s images for non-commercial, personal entertainment. Print them out in a color to match your curtains, make a card for grandma, assign them as homework – whatever.
But neither Banksy nor Pest Control license the use of the artist’s images to third parties. Please do not use Banksy’s images for any commercial purpose, including promoting merchandise or tricking people into thinking something was done or endorsed by the artist when it isn’t. The phrase “In his book, Banksy wrote that copyright is for losers” does not give you the right to distort information about the artist and commit fraud. We checked.”
Meanwhile, while interest in the artist’s personality is gaining momentum, Ukrposhta has published a limited edition stamp with an image created by Banksy himself. Were permits taken? The answer to this question is unequivocal – Banksy himself posted the ready-made look of the stamp in his microblog. Thank you for the story about our beautiful Ukraine and the events that are taking place, by conveying the main messages of peace and Ukrainian victory through art.
