The rules governing ownership of an artistic work are well-established in copyright law but what if that copyright owner doesn’t own the physical surface on which their work is created? The question of who owns the title to this physical surface was recently considered in a summary judgement decision involving street art attributed to Banksy (a mural painting known as “Art Buff”, painted on a building in Folkestone).The case (The Creative Foundation v Dreamland Leisure Limited and others  EWHC 2556) arose when the building tenant (the Defendants) removed a layer of the leased building’s wall which contained the mural. The focus of the dispute was whether the tenant or the landlord (who had assigned the relevant rights to the Claimant) owned the removed layer of the wall. (Copyright in the mural as an artistic work was not in dispute: this prima facie belonged to Banksy.)The tenant argued that it owned this title with reference to: (i) various covenants in the lease relating to upkeep of the building by the tenant; and (ii) an assertion that an implied term in the lease gave the tenant ownership of anything removed from the building as part of this upkeep. The judge (Arnold J) held that the tenant had no real prospect of success in establishing either of these points and delivery up to the Claimant was ordered. In short:
- The tenant’s argument – that the layer of the wall had to be removed to avoid becoming a shrine for Banksy followers – was not convincing (and may have been commercially motivated). Consequently, the tenant was not entitled, let alone obliged, to remove the mural wall in compliance with its repairing obligation.
- As to an implied term in the lease, Arnold J held that there was no basis to justify transferring ownership of waste or chattels which were being removed from a property in compliance with upkeep covenants – at best, the tenant would have an implied permission to remove, and where appropriate dispose of, waste or chattels of scrap or salvage value. Furthermore, even if ownership could be transferred in these circumstances, Arnold J held that this would not extend to chattels with substantial value (like the Banksy mural).
The relevance of this decision is likely to remain confined to street art and considerations for a landlord and tenant when removing (and possibly selling) these artistic works. However, it does give an interesting insight into a unique battle which may ensue, separate from copyright ownership, in these circumstances. It might also invite landlords to consider adding a term into future leases to address the issue of ownership of artistic works created on their property.