25 January 2023
The anonymous street artist, Banksy is no stranger to intellectual property (IP) controversy.
A recent spat with high street clothing retailer Guess over the use of a Banksy work, Flower Thrower, in their shop window has erupted into another round of IP battles between Banksy and others who use his/her work. The allegation is that the image was used without permission.
And that’s just the point. Banksy, being an anti-establishment artist, will always experience some tension between working within the ‘IP system’, to enforce creative and commercial rights as an artist. Not to mention associated moral rights too.
But on that front, I believe Banksy has had some success. And I would wish any artist or creative can enjoy that too for their own work. But in Banksy’s case, there are some unique lessons.
The story of Banksy’s relationship to IP is not unlike a Matryoshka Doll. There are hidden complexities within hidden complexities nested within the hidden artist whose power and intrigue rests on mystery, surprise and subversion.
No wonder it can be hard to put Banksy into a neat category of a recognised artist commercialising their work.
So just how is Banksy different? And what’s Banksy doing to shake things up in the ordinarily suited and booted world of IP regulation?
Subverting while using the IP system
I liken Intellectual Property to an umbrella term to describe a family of different rights that protect the work of creators and inventors. The different members of the family protect different expressions and for street artists that will mostly be copyright. For a business’ product and service brands, there are trademarks.
An artist may branch out into creating products that are manufactured, such as printed T-shirts or other merchandise that carry a distinctive appearance. And for that that there’s registered design.
Banksy, is correctly using as many different forms of IP as he can to maximise protection of his work (we’ll come on to his use of trademarks as a strategy).
In our workshop and webinar, Introduction to Intellectual Property, we emphasise how each of these ‘members of the family’ can be deployed to maximise the defence and use of your creations. While there are distinctions and differences between them, all could potentially be of use.
So how is Banksy doing it and what’s different?
“Are you a company looking to licence Banksy art for commercial use? Then you’ve come to the right place – you can’t. Only Pest Control Office have permission to use or license my artwork. If someone else has granted you permission, you don’t have permission. I wrote ‘copyright is for losers’ in my (copyrighted) book and still encourage anybody to take and amend my art for their own personal amusement, but not for profit or making it look like I've endorsed something when I haven’t. Thanks.”
The case of Guess
In the dispute with retailer Guess, Banksy was asserting his rights as the copyright holder around usage. Anyone who creates an original work (be it artistic, musical, recording or even software) can assert the same rights. The hard job is often to enforce those rights.
Banksy, did that in his own inimitable way. He claimed usage of Flower Thrower was essentially theft and encouraged a similar response in an outraged Instagram post; “They’ve helped themselves to my artwork without asking, how can it be wrong for you to do the same to them?”
Just to be clear, there is a difference between civil law and criminal law (IP the former, shop lifting the latter) but perhaps from the point of view of the creator who’s had their work used, it can feel the same.
Guess, for obvious reasons, removed the image from their store front.
But then there’s another mystery, nested within the same matryoska doll.
Guess are selling a range of clothing in collaboration with Brandalised who license images by graffiti artists, among them it appears, Banksy. Was there some deal done in private with a third party like Brandalised to allow limited usage?
We may never know and we don’t have to know. Again, the rights holders can use the work as they see fit in public or private. Which again, serves to illustrate how they should be able to retain the upper hand. It is their property, after all.
But what happens when the copyright owner wishes to remain anonymous, like Banksy does? Because to enforce your rights, you have to identify yourself as ‘the author’ or creator.
How can someone who remains anonymous do just that?
Subverting trademarks for a purpose
That is why, some have speculated, Banksy took an interest in filing some of his images as trademarks. Introducing now another Banksy work, Laugh Now, after the image of a monkey holding a placard stating ‘laugh now, but one day we’ll be in charge’.
Which is why a trademark in Banksy’s case might have appeal.
But not only that, a trademark in theory can last forever, so long as it’s being used and renewed every ten years by an individual or company who owns it.
This particular application was met with opposition, however. A company objected to the application on the grounds it was filed ‘in bad faith’ in order to avoid the standard copyright requirements of establishing ‘an author’ and that there was no intention to commercially use the mark.
After an initial rejection at the EUIPO trademark Cancellation Division, it was overturned by the Board of Appeal (Case R 1246/2021-5) on the grounds that, ‘the relief from not being required to reveal his identity does not exclude the intention to use the trade mark.’ And, ‘it may not be extrapolated or concluded that Banksy will use the system of trade mark protection as mere substitute of copyright in an unlawful manner. It may neither be concluded that the proprietor has in general a negative view on Intellectual Property Rights which would lead to a filing of a trade mark without any intention to use it’
One – nil to Banksy.
What does this serve to prove?
Making the system work for you
Owning one or more form of intellectual property is on the one hand just good sense, while understanding your rights to usage is another. You don’t necessarily have to have a commercial purpose to still benefit from IP protection, especially if you want to retain rights over how your creations are used. Like Banksy, look at the different options and make it clear what you own and the value you place on it.
Especially those in any creative industry. You don’t need to even be subversive or anonymous, like Banksy. Any creative business or individual should be prepared if they ever have to have their own IP battles.
And with Banksy, at least, he’s doing it in his own style.
Written by Jeremy O'Hare, intellectual property information expert at the BIPC.