24 September 2021

Street Art from Banksy to the Vatican, and the Question of Anonymity

By Amalyah Keshet, Senior Consultant

Quite likely the last organisation one would expect to be accused of copyright infringement – by a street artist no less – would be the Vatican. Which proves once again that in the realm of copyright and the arts, the unexpected should always be expected. When Roman street artist Allessia Babrow noticed one of her works reproduced on an Easter stamp issued by the Philatelic and Numismatic Office of the Vatican City State – without her knowledge or consent — she decided to sue. “Babrow said that when she reached out to the Vatican, she was offered an audience with the Pope and some free stamps in lieu of compensation.” Unfortunately, that sounds entirely believable. Babrow’s case will come up in court in December; she is seeking €130,000 ($160,000) in damages.[i]

Rather more inevitably, a complaint of copyright infringement was brought by Banksy (“Copyright is for losers”) in 2019 against the company that organised a Banksy exhibition for the Mudec Museum in Milan. The company was selling unauthorised merchandise such as notebooks, diaries, postcards, bookmarks and erasers, incorporating the street artist’s works. The case has finally gone to court, and details are here.

The interesting question raised in this case is, can an artist or other creator choose to remain anonymous while still claiming copyright protection and moral rights? Apparently legal opinion does not support the idea.

Nevertheless, the studiously anonymous Banksy is back in the news with a trademark issue this time.[ii]

The artist retains anonymity by having all business and legal matters handled by his representative, Pest Control. This ironically well-named entity filed for trademark protection for a number of Banksy’s works. Then, when Pest Control challenged a greeting-card company for use of one of the works, the European Union Intellectual Property Office (EUIPO) issued a decision[iii] declaring the trademark owned by Banksy invalid. In fact, the attempt to challenge using trademark, an intellectual property protection which involves a different set of standards than copyright protection, was new. Simplistically put, trademark protection requires that the mark or image be actively used in trade. It is also renewable over time, with potential to last far longer than copyright protection.

However, the EUIPO observed that Banksy and Pest Control simply had not used the work in question in trade.

“The proprietor has made no use of the mark, its activities preclude such activity and Banksy has only ever reproduced the work as a work of art… Banksy does not use any of the images for which registration has been sought, including the mark in suit, as a trade mark. The present application forms part of a series of filings which constitute an attempt to monopolise images on an indefinite basis contrary to provisions of copyright law.”[iv]

Further, the decision points out that:

“The applicant’s evidence shows instead that Banksy placed a warning on his website in an attempt to prevent the public from believing the goods were connected to him.

The applicant is under an obligation to show that the proprietor acted in bad faith at the relevant date, which it denies that it has. Banksy’s copyright lasts for his lifetime plus 70 years, whereas, a trade mark can be cancelled on the basis of non-use revocation if it has not been put to genuine use as a trade mark for a continuous period of 5 years. As such, the trade mark can only be monopolised indefinitely if it is put to genuine use as a trade mark and, if not, will be vulnerable to cancellation long before the copyright protection ends.”[iv]

Anonymity also came into the picture here:

“It is also noted that as Banksy has chosen to be anonymous and cannot be identified this would hinder him from being able to protect this piece of art under copyright laws without identifying himself, while identifying himself would take away from the secretive persona which propels his fame and success.”

Furthermore, “In his book ‘Wall and Piece’ Banksy suggests that anything depicted in public is free for use by all and permission is not required.”[v]

In fact, one famous pronouncement from the artist asserts:

“Any advert in a public space that gives you no choice whether you see it or not is yours. It’s yours to take, re-arrange and re-use. You can do whatever you like with it. Asking for permission is like asking to keep a rock someone just threw at your head.”

And, again from Wall and Piece:

“You owe the companies nothing. You especially don’t owe them any courtesy. They have re-arranged the world to put themselves in front of you. They never asked for your permission, don’t even start asking for theirs.”

It does seem out of character for the artist to seek something as conventional and commercial as trademark protection.

As of the end of June, four more Banksy trademark registrations[vi] had been cancelled by the EUIPO.

As a footnote to the topic of street art, it seems that in April 2021, the New York City Police Department launched a city-wide graffiti clean-up campaign, resulting in the cheerfully documented destruction of a mural that allegedly had been in place on a Brooklyn wall with permission for over a decade. The NYPD’s Commissioner described the clean-up campaign as “a great opportunity to continue to build trust and relationships in New York City”. Instead, it resulted in a class action lawsuit[vii] against the NYPD and the City of New York by Michael McLeer (a.k.a. Kaves[viii]), the artist whose bright Brooklyn mural was covered with opaque grey paint, without advance notice. Notably, the suit was filed in the Eastern District of New York, the same district that decided the famous 5Pointz case[ix] which resulted in a $6.75 million judgment awarded to graffiti artists whose works were painted over without proper notice.