Banksy’s complicated relationship with Intellectual Property

When you think of the world-renowned street artist Banksy, what comes to mind? Is it one of his many striking, politically-charged artworks? Or perhaps the video of his iconic Balloon Girl self-destructing, moments after it sold at auction for £1.04 million?

Most likely you will think of the considerable degree of mystery that endures surrounding the controversial artist’s identity despite his creation of numerous high-profile and publicly visible works throughout the last quarter century. It is somewhat ironic then that this, the most famous aspect of Banksy’s persona which has for decades piqued the curiosity of both art-lovers and the otherwise artistically indifferent, is also the greatest hurdle to his ability to enjoy full intellectual property protection over his artworks.

Artist Anonymity

The topic of Banksy’s anonymity has once again been in the news recently due to the decision of US fashion giant Guess to use several of the artist’s works in the online and in-store promotion of a new line of clothing, including his famous Flower Thrower stencil. This induced the artist himself to take to Instagram to encourage his almost 12 million-strong following to engage in retaliatory shoplifting at Guess’s Regent Street branch in London. He alleged that Guess has seen fit to “[help] themselves” to the use of his artwork for the purposes of their Brandalised collaboration without obtaining prior permission to do so.

In normal circumstances such an instance of unauthorised use of an artist’s work would amount to a relatively straightforward finding of copyright infringement. However, according to the EUIPO Cancellation Division’s ruling in September 2020 regarding his trademarks (more on those later), Banksy’s unwillingness to disclose his true identity presents a fundamental copyright problem; as Banksy prevents himself from being identified in the European Union Intellectual Property Office’s (EUIPO) words as the “unquestionable owner” of his works, it cannot be established with certainty that he is in fact the copyright holder. Therefore, he is unable to rely on copyright law for protection.

This is just one aspect of the tricky relationship Banksy has had with intellectual property (IP) in general. Over the course of the last twenty or so years the artist has repeatedly expressed his contempt for the idea that an entity should be able to exert control over creative works. This was highlighted by Brandalised’s response to Banksy’s statements regarding Guess’s use of Flower Thrower, making reference to the artist’s declaration that asking for permission to use a work exhibited in public “is like asking to keep a rock someone just threw at your head.” In addition to this statement, he has also previously encouraged people to “copy, borrow, steal and amend” his work, albeit solely for the purposes of “amusement, academic research or activism”.

Trademark Troubles

Banksy’s aforementioned aversion to intellectual property rights has also been a contributory factor to his difficulties in obtaining trade mark protection over his works. Over the past few years, several of his trademark registrations (filed in the name of Pest Control Office Limited) have been subject to successful cancellation actions on the basis of bad faith at the EUIPO.

Somewhat surprisingly, these rulings have repeatedly made direct reference to Banksy’s opinion on IP, referencing both his decision to be “very vocal regarding his disdain for intellectual property rights” and a comment that “copyright is for losers” from his 2006 book Wall and Piece. While such statements were confirmed not to preclude an artist from accruing such rights, the EUIPO’s reasoning centred on its finding that Banksy possessed no genuine intention to use the artworks as trademarks in relation to the goods and services listed, and that he (through his representative) was essentially using trademarks as a means of circumventing his anonymity-induced inability to obtain copyright protection. Further to this consideration, the EUIPO also drew attention to the problem of Banksy’s street graffiti being applied to property without the proprietor’s permission, thereby rendering the creation of his works a criminal act.

Cancellations Cancelled

In October 2022, a new chapter was added to Banksy’s long-running trademark saga in the form of the annulment of the Cancellation Division’s decision in relation to Laugh Now But One Day We’ll Be In Charge on appeal.

Finally providing a ruling in Banksy’s favour, the EUIPO’s Fifth Board found that the artwork’s being made publicly available online and for free downloading was not sufficient to establish that there existed no intention on behalf of the artist to use the sign for the purposes of trade mark protection.

The Board highlighted the fact that there is nothing to stop one artwork from being protected both as a trade mark and as a copyrighted work. Therefore, irrespective of whether it was the applicant’s intention to work around the prohibitions imposed by copyright law, the simple fact that he encountered difficulties in qualifying for copyright protection does not render him ineligible for trade mark protection on the grounds of bad faith. The Board also underlined the fact that a cancellation could not be found on the basis of non-use as the action itself was brought a mere six months into the five-year grace period following registration. As such, Banksy has until June of 2024 to make use of his trademark before it becomes susceptible to claims of non-use.

Beyond these considerations, the expression of any negative opinion by Banksy with regard to IP rights was found to be quite clearly permissible under Article 19 of the Universal Declaration of Human Rights and wholly irrelevant to cancellation proceedings.

Alternative Avenues of Protection

Whether or not there is a chapter yet to be written in the trade mark trials and tribulations of Banksy remains to be seen. For the time being, however, the powers that be have seen fit to bestow upon him some degree of intellectual property protection.

We have already established that life would be made considerably easier for Banksy if he were to simply reveal his identity and therefore enjoy the expansive set of rights conferred by copyright law. While persona and business-related considerations render such a prospect entirely unfeasible for Banksy specifically, the legal benefits of abandoning anonymity for individuals in the creative industries more generally extend far beyond the bounds of copyright.

Although image rights do not exist as a standalone right in the UK, legal mechanisms can still be found for well-known individuals who seek to protect themselves against third party exploitation. For example, former Formula 1 driver Eddie Irvine successfully sued Talksport for passing off and received damages when the company doctored an image with the intention to give the impression that Irvine listened to a Talksport radio.

Image from High Court judgement, [2002] EWHC 367 (Ch)

The High Court’s judgement in this case made reference to the fact that the money derived by a famous individual by way of endorsement of particular goods or services represents “a very substantial part of their total income.” With consideration to the fact that “the lustre of a famous personality… will enhance the attractiveness of those goods and services”, the unauthorised third party in such scenarios essentially benefits from the “attractive force which is the reputation or goodwill of the famous person” without having to pay an appropriate endorsement fee.

Similarly, when Topshop sold products bearing an image of popstar Rihanna without her prior permission, the Court of Appeal referred to Irvine and held that this too was passing off due to the creation of a false impression of endorsement.

Conclusions

Parallels can quite easily be drawn between the facts of the Eddie Irvine and Rihanna cases and Banksy’s recent dispute with Guess and Brandalised. Such instances of unauthorised exploitation of a famous individual’s image provide invaluable insight into the range of benefits to be derived from making full use of all available forms of intellectual property protection and exploring alternative forms of image rights protection.

Although these forms of protection may not be feasible for well-known figures such as Banksy who rely on their anonymity for public persona or business-related purposes, recent developments at the EUIPO have demonstrated that trade mark rights will not be made unavailable to those seeking a workaround to the limitations of copyright.