On 1 April 2026, Mr Justice Nicklin handed down judgment in Full Colour Black Ltd (t/a Brandalised) -v- The Artist Known as Banksy & Anor case, ordering the claimant company to pay the defendant’s costs on an elevated basis designed to reflect the court’s disapproval of the claimant’s conduct.
The judge found that a libel claim brought against the pseudonymous street artist had been pursued not for the purpose of obtaining vindication by adjudication, but as a means of exerting pressure by exploiting Banksy’s well-known desire to preserve his anonymity. The decision raises important questions at the intersection of copyright, defamation, anonymity and the proper use of litigation.
In this article, we examine how the court approached the misuse of defamation proceedings as commercial leverage, and the wider implications for copyright enforcement, anonymity and litigation conduct.
The dispute arose from a collaboration between the claimant Full Colour Black Limited (FCB), trading as Brandalised, and the fashion retailer Guess. In October 2022, Guess launched a clothing collection marketed under the description “GUESS X BRANDALISED WITH GRAFFITI BY BANKSY”, featuring images derived from Banksy’s artworks, including the well-known 'flower thrower'. The commercial arrangements were governed by a licence agreement between FCB and Guess dated 8 March 2022, to which Banksy was not a party and of which he had no knowledge.
On 18 November 2022, Banksy posted a photograph of the Guess store’s Regent Street window display on his Instagram account, adding the now-famous caption: “Attention all shoplifters. Please go to GUESS on Regent Street. They’ve helped themselves to my artwork without asking, how can it be wrong for you to do the same to their clothes?”
FCB subsequently brought a libel claim against both Banksy and his management and licensing company, Pest Control Office Limited (Pest Control), the first and second defendants, alleging the post had caused serious reputational and financial harm. The defendants defended the claim on various grounds but did not plead the defence of "honest opinion" which the judge described as the obvious and strongest defence. The reason for this is unknown, however, it's possibly due to the fact that the defendants did not want Banksy to have to give evidence in court, and therefore revealing his identity.
A key thread running through the entire dispute is the question of copyright in Banksy’s artworks, and in particular whether FCB’s business model gave it any lawful basis to commercialise them.
FCB’s position was that its licensing arrangements were premised on the grant of rights in photographs of Banksy’s artworks, essentially that they were exploiting photographs of Banksy’s work, not Banksy’s work itself.
Through those arrangements, FCB purported to license photographic images to third parties, including Guess, for use on commercial merchandise. The sole director and shareholder of FCB maintained that FCB did not use “unlawful images” and sought to justify the company’s activities on the basis that “there is a separate copyright that applies to photographs”.
The implication of FCB’s stance was that, so long as Banksy remained unwilling to identify himself and litigate, FCB’s commercial exploitation could continue largely unchallenged. FCB’s trade mark attorney had previously commented on this multiple times and framed Banksy’s difficulty as one of enforcement rather than entitlement, repeatedly observing that Banksy could not sue for copyright infringement without revealing his identity.
The defendants’ position was set out in evidence from their solicitor. They contended that copyright in the relevant artworks subsisted in Banksy as author, and that Pest Control held the exclusive worldwide licence of that copyright. No consent had ever been given to FCB, or to any third party acting through FCB, to use or commercially exploit those works.
The defendants maintained that they had made this position clear to FCB on numerous occasions over more than a decade, and that FCB’s arrangements with third parties could not confer rights which FCB did not itself hold. Consistent with Banksy’s publicly stated opposition to the commercial exploitation of his works, Pest Control website made plain that neither Banksy nor Pest Control licence the artist’s images to third parties.
Mr Justice Nicklin’s analysis was decisive on this point. He observed that while a photograph may itself attract copyright protection, that copyright is distinct from, and does not displace, the copyright subsisting in the underlying artistic work. Where a photograph of a piece of artwork is reproduced so as to copy a substantial part of the underlying work, the making and commercial exploitation of such copies without the consent of the copyright owner is liable to infringe that underlying copyright.
Accordingly, FCB’s ability to license photographic copyright could not, as a matter of law, confer a right to reproduce the underlying artistic works. The judge described FCB’s business model as “legally precarious”.
The defence to libel faced an interesting problem: how could Banksy give evidence in court, whilst staying anonymous? The judge posited that one explanation for why Banksy opted not to use the “honest opinion” defence, was so that he would not be required to identify himself when giving evidence. The judge thought it was “otherwise difficult to understand” why the defence made no mention of honest opinion.
In any event, Banksy's solicitors had confirmed that Pest Control had accepted responsibility for publication of the Instagram post. Despite this, FCB continued to name Banksy as a personal defendant and reserved the right in its particulars of claim to seek an order requiring Banksy to identify himself. Mr Justice Nicklin observed there was little objective justification for naming Banksy as a personal defendant in circumstances where Pest Control had already accepted responsibility. In any event, to the judge, it appeared that the claim looked increasingly more like it was being brought in the hopes of getting Banksy to settle.
Settlement terms proposed by FCB included a ‘coexistence agreement’ or potential licenses. Banksy, and Pest Control however, did not wish to work with FCB at any point.
The most striking aspect of the judgment is the court’s finding that FCB deployed the proceedings to exert pressure by exploiting Banksy’s concern for his anonymity. The judge traced a pattern of conduct stretching back over a decade in which FCB’s sole director and shareholder had drawn attention to the risk to Banksy’s anonymity inherent in litigation and sought to use that risk as leverage.
As early as 2011, FCB’s director had written to Pest Control warning that legal action would subject Banksy to “close scrutiny” and that he would “have to give evidence to prove the creation of the works on which he claims copyright”, before proposing a confidential commercial arrangement. Similar threats were repeated in 2014. FCB's trade mark attorney, had publicly stated that “the worst thing that could happen to Banksy is if he gets unmasked by appearing in court”.
The court has the power to assess what costs a party has to pay, in broad terms, more harshly, when it considers that there is conduct that is “unreasonable to a high degree” and takes the case “outside the norm”. Mr Justice Nicklin was satisfied that this threshold was met. The proceedings had been pursued in a manner and for purposes which were unreasonable to a high degree. The critical feature was that the proceedings were deployed to exert pressure relying upon Banksy’s well-known concern to preserve his anonymity as central to his artistic expression.
However, the judge refused the application for a non-party costs order against FCB’s director personally. Despite finding that the director had plainly controlled the litigation as sole director and shareholder, the judge held that the higher threshold for non-party costs had not been met. The claim had been brought in the company’s name for the company’s benefit, and any personal advantage to the director was indirect and incidental to his shareholding.
This decision provides useful guidance across several areas of practice.
With regards copyright, the judgment reinforces the principle that a licence to exploit a photograph of an artistic work does not extend to the underlying work itself. Businesses commercialising images of street art or other publicly visible works should ensure they hold appropriate rights from the copyright owner and should not assume that photographic copyright alone is sufficient.
Similarly, companies/individuals contracting with companies who claim to have the legal rights to licence the copyright in a certain work should ensure that the contract has in place sufficient warranties and indemnities in case its turns out that the licensor does not have the correct legal rights.
On defamation, the case is a reminder that claims which lack real prospects of success, and which are pursued for collateral purposes, carry significant costs consequences. The availability of defences such as honest opinion should be carefully assessed before proceedings are issued. The judge’s analysis also suggests that courts will scrutinise the purpose behind the decision to name a particular defendant, especially where an alternative defendant has accepted responsibility.
On litigation conduct more broadly, the decision is a clear warning that proceedings used as an instrument of leverage, risk enhanced cost exposure. Claimants should consider a case fully before making a decision to litigate and ensure that they are not litigating with unjustified ulterior motives.
For further information, please contact our dispute resolution team.
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