The English press has recently reported that a work by the famous graffiti artist Banksy has been removed from the wall of a London street and is now being offered at auction in Miami. Aside from the local anger the removal of this popular work has generated, interesting questions arise regarding the ownership and infringement of copyright in graffiti works. The work was affixed to private property: what effect (if any) does this have on the ownership of the work and the subsistence of copyright? Do graffiti artists have a right to restrict the subsequent exploitation of their works?
In our view, there is no reason why a piece of graffiti cannot benefit from copyright protection as an artistic work, subject to the requisite amount of 'skill, labour and/or judgment' having been exercised in its creation. The definition of 'artistic work' under English copyright law is inclusive and will encompass a broad range of graphic works, provided they are affixed to a surface. Moreover, the fact that graffiti is often painted on private property without the proprietor's consent should not in principle affect the ownership of copyright in the work itself, which as a general rule will vest in the artist. However, questions arise about the artist's ability to control the subsequent exploitation of their work . Imagine, for instance, that a graffiti artist spray paints the side of a building without first obtaining the permission of the owner. In most cases, the proprietor's first concern would be the removal of the offending artwork from his/her building, which is likely to be treated as an act of criminal damage. In these circumstances, should the perpetrator be able to enforce his/her copyright in that work (or even complain about derogatory treatment of the work under his/her moral rights) and thus ultimately benefit from their own wrongful conduct?
The position in relation to graffiti attributed to Banksy is even less clear cut. For example, where Banksy's works have in fact increased the value of a building, can it be said that criminal damage has even occurred? In these circumstances, does the artist retain an ability to restrict unauthorised exploitations of his work, or by creating the original work on private property, is ownership of the work itself 'gifted' to the proprietor of the property in question, thereby 'exhausting' the artist's right to prevent any subsequent distribution of the original? Unfortunately, these precise issues are unlikely to be tested before a court (after all, Banksy himself has famously proclaimed, "copyright is for losers"). However, if the practice of selling publicly-displayed art becomes more prevalent, perhaps spreading to works such as murals, it will be interesting to see how artists choose to react.