Who Owns a Banksy? Legal and Artistic Commentary on the Question
December 5, 2019
Graffiti art has a hard enough life as it is … before you add hedge-fund managers wanting to chop it out and hang it over the fireplace. For the sake of keeping all street art where it belongs I’d encourage people not to buy anything by anybody unless it was created for sale in the first place. – Banksy
The household name synonymous with graffiti as an accepted art form is ‘Banksy,’ that of a UK-born artist who is as anonymous as his name ubiquitous and who’s works are increasingly valued and appreciated. (See, Part I: Who Owns Street Art? Center for Art Law). One of his latest “Better Out Than In” depicts a graffiti artist vomiting flowers. Originally thought to be in LA but it is probably somewhere in NYC because now Banksy seems to be taking on the Big Apple; his website is directing viewers to Lower Manhattan, Midtown and so on. (See, http://www.banksy.co.uk).
Now back to the retching artist. What Banksy is trying to say with this piece, assuming the work is indeed his, is open to interpretation. It may have nothing to do with the fact that his works are heading to art auctions, removed from their intended locations. Or the artist may be having a visceral reaction to the decisions of the property owners to remove his works and sell them for personal gain at the cost of depriving the community he chose to decorate and enriched with his commentary and humor.
The discourse around graffiti art is necessarily two fold. The work is anonymous but not private. It is gritty yet vulnerable. It attracts and repels at once. With graffiti more than with any other form of art, the viewer is flooded with questions. Is graffiti ‘art’ or ‘vandalism’? Who made it? Who owns it? What kind of message would aliens receiver if they came down to Earth and saw a silhouette of a dog peeing on a silhouette of a fire hydrant with a tag “You complete me…”?
Historically, graffiti was derided not as a form of artistic expression but as an offense, a trespass to property resulting in actual damages. Visual Artists Rights Act, 17 U.S.C. § 106A, would hardly protect tags or colorful self-expression on store shutters or bridge underpasses. The idea that graffiti may be elevated to a recognized work of art is recent. So recent in fact, that graffiti artists are more likely to be accused of intentional damage to private property, face arrest, monetary fines and jail time, not to mention missing their own art openings if arrested for vandalism (felony and misdemeanor offenses). See Complex Art+Design.
In New York, graffiti artists can face felony charges for criminal mischief under the Penal Law § 145.00. Making graffiti is a class A misdemeanor. The Law defines term ‘graffiti’ as “etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property” and “No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.” Penal Law § 145.60. Even possession of graffiti instruments is a misdemeanor because it may evince “an intent to use it to damage property that the defendant had no permission or authority to mark.” Graffiti instruments include “any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property….” Penal Law § 145.65. See for example, People v. Karina A., 102 A.D.3d 446, 956 N.Y.S.2d 883 (N.Y. App. Div. 1st Dep’t 2013).
That is not to say that some of the graffiti that bedecks underpasses and building walls or sides of train cars are not an interesting social commentary, an anecdote that the artist shares with anonymous masses. Yet, law enforcement and most real property owners are rarely amused. Unless may be the graffiti is done by Banksy. In the case of Banksy, some property owners have tried to capitalize on his popularity by covering his graffiti with plexiglass to preserve the works and attract tourists or even removing portions of the walls for sale.
For example, in August 2013, LA Times and others have reported that a 2008 Banksy mural, entitled “Flower Girl,” was removed with a part of the wall of a gas station in anticipation of an auction in December. The piece, weighing over 5,000 pounds, is expected to net about $300,000. Another piece “Slave Labor” was removed from a wall of a retail store and sold privately in excess of $1 million, following an unsuccessful campaign to recover the work for the public viewing.
Whether or not Banksy is able to remain anonymous in the City that does not sleep remains to be seen, as Banksy paints New York with automotive paint white and black. At least one of his works has been whitewashed already. Who is the second culprit is unclear. May be Banksy himself covered up the work to stop the fortune hunters from profiting off his work and show that nobody owes him; may be some hard-core New York street artist is fighting off another British invasion, or may be a diehard property owner is keeping his property graffiti free. Whenever Banksy strikes again, once a wall has graffiti on it the owner of the wall is free to do with it as she pleases — paint it over, let it be or cut it up and sell it stone by stone. In fact, it would not be inconceivable to have an action for damages brought by a property owner who has a Bansky graffiti defaced by another, street artist or vandal. After all, unlawful acts such as trespass and vandalism do not sanction subsequent equivalent acts and a New York wall with a Banksy may be worth more than a piece of wall from London or LA .