What do you do if you find a Banksy on your wall?
Wednesday, 8th June 2016
The staff and students of Bridge Farm Primary School in Bristol returned from their half-term break on Monday to see an original Banksy artwork emblazoned on a brick wall.
Burning Tyre: Image credit: firstname.lastname@example.org/swns
The head teacher of the school, Geoff Mason, described the new mural as "inspirational and aspirational" for his pupils.
Banksy had apparently snuck in to the school grounds over half term, and painted/donated the work as a thank you for the school's decision to name one of its new buildings after him.
Banksy left a letter for the school saying:
Dear Bridge Farm,
Thanks for your letter and naming a house after me.
Please have a picture.
If you don't like it, feel free to add stuff, I'm sure the teachers won't mind.
Remember - it's always easier to get forgiveness than permission.
Setting aside the incredible story of how Banksy has become one of the most respected, and mysterious, artists in the UK (if not the world), this story does inspire a property lawyer like myself to delve into the complex and intricate world of what to do with a Banksy if you happen to find one on your wall. It is not often that the worlds of art, politics, vandalism and property combine so vividly, and it is hard not to be distracted by it.
Leave it where it is?
Perhaps the starting point is to at least try to leave the artwork in situ - where the artist intended it to be. Banksy has previously condemned the removal and private sales of his art. In April 2014, ten of his artworks were removed from public walls and sold at auction raising over £2m. Banksy had posted a message on his website (www.banksy.co.uk) at the time saying:
"Banksy would like to make it clear - this show has nothing to do with me and I think that it's disgusting people are allowed to go displaying art on walls without getting permission". I have no doubt that Banksy was amusing himself with that statement, given his own rise to anonymous fame by doing just that.
Who Owns the Artwork?
If you are inclined to remove the artwork, the first real case on the topic is The Creative Foundation v Dreamland Leisure Limited  - which relates to this artwork, known as "Art Buff":
Art Buff: Image credit: Gareth Fuller/PA
"Art Buff" appeared on the back of an amusement arcade in Folkestone. The Tenant at the arcade decided to remove it, by cutting it from the wall without the Landlord's permission. The piece was then sent to the US where it was offered for sale.
The Creative Foundation (an organisation promoting the creative arts in Folkestone), disappointed by the mural's removal, worked with the Landlord of the premises to seek an injunction preventing the sale of the artwork.
Justice Arnold had to address the following two questions:
- Was the Tenant under a duty to remove the artwork from the wall (under the Tenant's repairing covenant in the lease) because the artwork was technically graffiti? And
- Who owned the artwork? The Landlord, or the Tenant?
After much toing and froing, Justice Arnold ultimately determined that:
- The Tenant was not obliged, nor entitled, to remove the artwork from the building under its repairing covenant in the lease; and
- The artwork may well be 'rubbish', or a 'thing' but if that 'rubbish', or 'thing' has a value, and that value is attributable to the spontaneous actions of a third party, then the Landlord should be entitled to that rubbish or thing.
Justice Arnold ordered that the piece be returned and reinstated.
Whilst this may not be the most elegant treatment of the legal issues, at least the outcome led to the repatriation of the artwork, and its continued public display. It would, however, be interesting to see how the outcome would have differed if both the Landlord and the Tenant had wanted to sell the piece for their own private gain.
Listed Building Consent as a Means of Protecting Artwork
A mural which became known as "Spy Booth" was painted by Banksy on a Grade II listed residential building in Cheltenham, close to the government's GCHQ headquarters. The artwork was granted retrospective planning consent by Cheltenham Borough Council, so that the mural itself was then afforded Grade II listed protection. The listed protection meant that the mural could not lawfully be interfered with or removed.
Robin Barton, from the Bankrobber Gallery in London, had described the retrospective planning consent as "an ill-judged gesture" and "short sighted". He explained that he had spent more than £25,000 on protecting the work, and added "the owner now wants to paint over it and move on with his life".
Apparently during the life of the artwork, it had been "daubed with white paint, sprayed with silver and red graffiti, had people trying to steal it and businesses and communities fighting over its ownership" (source: www.bbc.co.uk).
Spy Booth: Photo credit: PA
What would Damien Hirst do?
The distinction between the use and ownership of public and private art is illustrated quite neatly by the way in which Damien Hirst handled a similar scenario in 2004.
Damien Hirst had painted an early spot painting directly onto wallpaper in 1988 in a house in London. The painting was a birthday present for the then homeowner Jamie Ritblat. When the house was later sold by Ritblat in 2005 the wallpaper remained. The new owner of the property, Jess Simpson, bought the property for over £400,000 believing it to contain an authentic and original Damien Hirst artwork. Mrs Simpson removed the wallpaper and framed it, so that it could then be sold. She had explained that the Hirst was not "entirely to her taste", and was keen for it to be sold to someone who would really appreciate it.
Damien Hirst's company, Science Ltd, forbade her from selling the wallpaper work, and asserted themselves as the rightful owners. Importantly, Hirst was in possession of the Certificate of Authentication (pictured below) and refused to hand that certificate over to Jess Simpson. The wallpaper artwork could not, therefore, be sold, and so is instead being stored in a gallery in Pimlico. The gallery owner, Andrew Lamberty, said "I am essentially not allowed to say that I have a picture by the artist, that is actually by the artist." (Source: www.telegraph.co.uk).
Certificate of Authentication: Image credit: www.telegraph.co.uk
So whilst the question of ownership has been tested in the Dreamland case, there are no clear rules as to what one should do with a Banksy when you find one on your wall.
No doubt, however, you could expect at least some, or all, of the following:
- Public attention;
- Controversy - e.g. in a school setting, do all parents/staff consider the artwork appropriate?
- Theft attempts (as with Spy Booth);
- Vandalism (over and above the initial vandalism of the artwork itself!);
- Approaches from seasoned Banksy dealers (and others);
- Moral pressure to keep and preserve the artwork (as with Art Buff);
- Financial pressure to remove and sell the artwork;
- Landlord/Tenant disputes.
In the words of Alastair Upton, the chief executive of the Creative Foundation: "People should fight to keep these works in the public realm. That is how they came about and where they were intended to stay - not that I have any idea what Banksy's intentions are".