In a previous post (here), IP Whiteboard discussed the potential avenues that a street artist may have in protecting their work from defacement or removal by recourse to intellectual property rights. Although the City of Sydney is still yet to introduce its revised street art policy, we thought that last week’s judgment of the UK High Court in The Creative Foundation v Dreamland Leisure Ltd & Ors [2015] EWHC 2556 (Ch) warranted an update on the issue.

The facts

The case was an application by the Creative Foundation, a not-for-profit focused on the promotion of creativity and the arts in the small English town of Folkstone, for the delivery up of a section of wall bearing a Banksy mural dubbed “Art Buff.” The mural, which depicts a headphone-wearing elderly woman observing an empty museum plinth was originally painted by Banksy on the external wall of the defendant’s (Dreamland Leisure Ltd) gaming arcade without prior knowledge or permission. In late 2014 Dreamland detached the section of the wall containing the piece and sought to auction it in the United States, exhibiting it for a hefty US$720,000.

The issue

Sounds fair, right? Particularly given our discussion in the last post about the distinction between the copyright in a work and ownership over the physical object on which the work is placed (i.e. the wall), surely Dreamland were entitled to deal with this property as they like. The catch – Dreamland were not the owners of the building but instead tenants under a 20-year lease and the wall had been carved out without the permission of their landlord. Indeed, after the people of Folkstone protested Dreamland’s actions the building’s landlord assigned its interest in the portion of the wall to the Creative Foundation, thereby giving it the right to bring the claim against Dreamland.

The decision therefore turned on the content of the lease – who had title to the fragment of wall under the terms of the lease – the lessee or the landlord? Was Dreamland entitled to (or required to) remove graffiti?

The issue in the case was not copyright in the artistic work “Art Buff”, which Mr Justice Arnold accepted prima facie belongs to Banksy.

Mr Justice Arnold found that the Creative Foundation was entitled to summary judgement for delivery up of the section of wall bearing the mural. In applying for summary judgment, the Creative Foundation asked the Court to decide that Dreamland had no reasonable prospect of succeeding in its defence.

“Good and substantial repair and condition”

The key provision under consideration was the lessee’s obligation to keep the premises and all fixtures ‘in good substantial repair and condition’. The defendant argued that the obligation was engaged by their conduct because the “mural was a graffito, and needed to be dealt with as such” (somewhat ironic given their tacit acknowledgement of its value by sending it to auction) and that it needed to be removed “because it was predictable that it would attract other graffiti” – being a work of Banksy, the wall would be considered a ‘shrine’ for Banksy followers.

In his decision, Justice Arnold closely considered the terms of the lease to hold that Dreamland had “no reasonable prospect of establishing that it was entitled, let alone obliged, to remove” “Art Buff” in compliance with the lease agreement. Mr Justice Arnold was “narrowly persuaded” that the argument in relation to dealing with the mural as graffito and possible ‘shrine’ had a real, as opposed to fanciful, prospect of success. However, Mr Justice Arnold held that Dreamland failed to discharge its onus of proving that removal and replacement of the underlying section of the wall was an objectively reasonable method of complying with its obligation when compared to alternative, less-invasive, methods of dealing with the graffiti (i.e. painting over or chemically removing it). He was not persuaded by Dreamland’s argument that if “Art Buff” was merely painted over or cleaned off that the knowledge there had been a Banksy there previously would continue to attract other graffiti artists. It was unlikely that removal itself would prevent this from still occurring and “the problem would remain the same whether the Banksy was removed by overpainting, cleaning or removal and reinstatement of the wall. The shrine, such as it was, would remain a shrine, whichever method was employed.”

Interestingly, Mr Justice Arnold made it clear that the Foundation did not argue that the obligation to keep the premises in good substantial repair and condition was not engaged “because destruction of the artistic work would be an infringement of Banksy’s moral rights, and in particular his integrity right, in it”, and so perhaps this could have been an alternative argument on this point.

Did the mural become the property of Dreamland once removed?

In obiter, Mr Justice Arnold also rejected Dreamland’s argument that, under a term implied in the agreement, the lessee acquired title to the chattel once the section of wall had been removed from the building in compliance with the lease, even though it had substantial value. Mr Justice Arnold pointed out that the facts of the case were “exceptional” compared to the everyday repair work that these terms usually cover – concerning a part of a building that both “adventitiously acquired substantial value as a result of the spontaneous actions of a third party in painting the Mural” and, assuming for the purpose of the argument, “the presence of the Mural justified the removal of that part of the building by way of repair.” Mr Justice Arnold held that such a chattel, having both aesthetic and economic value, belonged to the lessor. Interestingly he did not consider it relevant that the value of the chattel was solely attributable to the spontaneous actions of a third party, Banksy, as either result would yield a windfall to one party, a windfall over which he considered that the lessor arguably has a better right.

Implications

Although more tenancy law than intellectual property, the decision presents an interesting extension to our previous discussion on the protection of graffiti. Street art, by its very name and medium is a craft that, more than others, arguably belongs uniquely to the public and so perhaps looking only at the intellectual property rights of individual artists as a means of protecting the integrity of these pieces is not always enough. As the efforts of the Creative Foundation (and by extension the building’s landlords) in this case illustrate, street art may also be preserved and enjoyed by the public through the assertion of property rights over the physical object on which it is adorned.

However, in this case, the property rights of the Creative Foundation were enjoyed by reason of an assignment from the landlord. The same opportunity may not be available for other Banksy works. Other community bodies have taken active steps to fight for the return of a Banksy work to their locality (see here), but not on the same property rights basis.

As more and more Banksy pieces are auctioned for more and more money (see here), it is possible that further legal disputes may arise over street art in the future. Given Banksy’s notoriously well-kept privacy and rejection of any legal battles it is likely that future controversies over his work will also involve motivated third parties. Regardless, IP Whiteboard will keep you updated on any developments.