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Get Off My Graff: Banksy's Valuable Vandalism Spurs Property Fight

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By Ephrat Livni, Esq. on September 15, 2015 12:51 PM

The street artist Banksy has generated much brouhaha in the two decades that he's been painting the world's walls and replacing museum classics with his own fakes. He has inspired outrage, copy cats, and court cases that challenge traditional notions of property.

But as his reputation has grown, the undercover artist increasingly finds himself in the ironic position of being at the center of ownership rights fights. Banksy's works usually appear overnight in places visible to the public -- often owned by private individuals -- and the owners want to keep the graffiti.

The Writing on the Wall

The most recent example is a British case that highlights the unique complications raised by Banksy's works. In Creative Foundation v. Dreamland Leisure a lucky tenant, Dreamland Leisure, was blessed with a Banksy on a back wall and assumed responsibility for repairs like a dutiful tenant ... by removing that part of the wall and putting it up for sale.

Meanwhile, the owner -- Dreamland's landlord -- transferred its rights to the spraypainted wall to a registered charity promoting local art, the Creative Foundation. The charity sued the tenant demanding its Banksy back.

Tilting at Windfalls

Forced to determine who owns the artwork, the High Court of England and Wales decided that, despite Dreamland's twenty year lease, the removed portion of the wall and the image on it belong to the property owner. The tenant was entitled to remove the wall to repair the premises but did not become the owner of it, even if the extraction could be characterized as waste or scrap, and especially not when the salvage was so valuable.

In his judgment, Justice Arnold of the High Court of England and Wales' chancery trial court addressed Banksy's role in the matter."I do not consider that it makes any difference that the [wall's] value is attributable to the spontaneous actions of a third party. It is fair to say that, whatever solution is adopted, one party gets a windfall."

As for Banksy, he retains copyright, the Justice noted. Although not an issue in the case, this is interesting because it reveals that delicious irony at work in Banksy's work -- he broke the law by destroying or defacing property to create this piece but can make bank off the image in the future.

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