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Banksy’s copyright battle with Guess – anonymity shouldn’t compromise his legal rights

Fresh from providing war-torn Ukraine with a series of murals, Banksy recently took to his Instagram account to channel frustrations with a more domestic concern.

The elusive artist has accused fashion retailer Guess of exploiting his artwork without permission. He posted a picture of the brand’s flagship store, which displayed clothes featuring some of its iconic pieces (including the Flower Thrower and Flying Balloon Girl), and invited shoplifters to raid it, saying: “They helped themselves to my artwork to do without asking. , how can it be wrong for you to do the same to their clothes?”

The fashion company justified the new collection by emphasizing that it was “inspired by Banksy’s graffiti” and that they had legally acquired rights over Banksy’s art.

It is highly unlikely that Banksy, or his organization Pest Control, ever authorized an outside company to manage the copyright over his art. This can be inferred from Banksy’s own website, which first claims that “neither Banksy nor Pest Control licenses the artist’s images to third parties” and then confirms that “Banksy does not do merchandising”.

Some may argue that Banksy’s latest move is hypocritical, emphasizing what the artist himself noted in the introductory page of his best-selling 2005 book, Wall and Piece: “Copyright is for losers.”

But A But a statement made almost 20 years earlier does not deprive the artist of the exclusive rights over his art. To allow otherwise would unnecessarily restrict his freedom of expression.

A Banksy depiction of two children playing catch with the copyright logo.
Banksy’s Pest Control website encourages the non-commercial use of his images, saying: ‘Print it out in a color to match your curtains, make a card for your grandma, submit it as your own homework, whatever already.’
Pest control

As explained by the EU Intellectual Property (IP) Office last year in the proceedings that led to the cancellation of one of Banksy’s trademarks, one cannot lose the right to a trademark due to anti-copyright declarations that was made in the past.

This was also highlighted by a decision from the same office a few weeks ago, which overturned a previous ruling that invalidated Banksy’s trademark of the artwork Laugh Now But One Day We’ll Be In Charge. It was noted that anyone is free to express their views and opinions publicly, and that Banksy’s old statement, “Copyright is for losers”, does not mean that copyright should not be enforceable, as it is simply an ironic comment was.

A strategic change from team Banksy

Artists can be anti-establishment and still take legal action to protect their intellectual property. And that’s exactly what Banksy and Pest Control started doing.

They planned a trademark filing strategy in multiple jurisdictions and even won an unauthorized merchandise case in Italy in 2019, while leaving people free “to use Banksy’s images for non-commercial, personal entertainment”.

Another problem is anonymity. Some commentators have claimed that Banksy would have to reveal his identity in order to start a copyright case, something the mysterious artist understandably wants to avoid.

But the idea that anonymous (or pseudonymous) artists can’t bring legal action while keeping their real identity confidential is debatable. Many laws around the world, including in the US and the UK, and the main international treaty on copyright (the Berne Convention), clearly protect anonymous works.

Several copyright offices also allow the registration of anonymous works – the US Copyright Office is one of them. And in many countries it is possible to initiate legal proceedings while remaining anonymous or pseudonymous if certain tests are met – the aim is to protect the complainant’s privacy and personal data.

The EU IP Office emphasized this point during the recent proceedings on Banksy’s trademark, saying: “As regards Banksy’s need to remain anonymous, it must be said that in proceedings a party can to a certain extent request to ‘ to be treated in a confidential manner in order to limit, as far as possible, the distribution of his personal data, if this is justified.”

Banksy’s anti-establishment ethos

Not only is copyright compatible with anti-establishment messages, it can also become the legal tool to maintain those messages. Copyright allows artists to object to and prevent what many of them do not accept: a commercial exploitation of their art that is inconsistent with their message. Using copyright laws can protect the reputation of artists who, like Banksy, do not want to be associated with marketing and profit-oriented activities.

A stencil Banksy work depicting a gymnast doing a handstand on the side of a bombed building in Ukraine.
Banksy recently unveiled a series of works in war-torn Ukraine.
Sergey Dolzhenko

There have recently been several cases where street and graffiti artists have brought copyright claims precisely because they did not want to be linked to corporate and consumer messages. This is, among others, the case of the American artists Dash Snow, Ahol, Revok and Rime.

But can Banksy be accused of selling out due to his recent IP enforcement strategy?

Since copyright regimes are neutral towards the messages conveyed by the works, this accusation is weak. Banksy can make a lot more money by regularly licensing his copyrights and trademarks to commercial entities. Instead, he chooses to license his art royalty-free to charities. One of these is the London-based Loves Welcome, a creative social enterprise that helps refugee women.

Banksy also often donates proceeds from sales of his canvases to non-profit organizations. This happened in 2021 when the COVID-themed painting Game Changer, which depicts a young boy playing with a superhero nurse doll, sold for £16 million. The proceeds from the sale were used to support the Southampton Hospitals Charity, among others.

Banksy’s relationship with especially intellectual property and copyright has certainly been turbulent. But denying him the ability to enforce rights over his art would be wrong. Even controversial figures like Banksy should take advantage of the tools the law provides to protect their artistic vision.

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