Ben Ellery, Jonathan Ames Legal Editor Friday December 08 2023, 11.00pm GMT, The Times
While Banksy’s lawyers relied on three other arguments to maintain his anonymity, it is his reference to the Berne Convention that his lawyers found most legally appealing.
Enrico Bonadio, a reader in intellectual property law, said that while the Berne Convention focused on copyright law, it could be interpreted as giving legal backing to anonymity for artists in a range of civil proceedings.
However, he said the matter was a “grey area” in law that would need to be decided by the courts.
Andrew Gallagher and his company Full Colour Black (FCB) have filed a lawsuit accusing “the artist known as Banksy” of defamation, with the co-defendant named as Pest Control Ltd, the company that sells his artwork.
In written submissions, Gallagher’s lawyers have stated that he “reserves the right to seek an order that [Banksy] identifies himself for the purposes of these proceedings”.
Gallagher has the option open to him to make an application to remove the artist’s anonymity.
His company, Brandalised, licensed a photograph of Banksy’s work to the fashion retailer Guess last autumn for use in its Regent Street shop window.
In a now-deleted post made on November 18, Banksy’s Instagram account, which has 12 million followers, used an image of a Guess shop window with the words: “Alerting all shoplifters. Please go to GUESS on Regent Street. They’ve helped themselves to my art without asking. How can it be wrong to do the same to their clothes?”
In its High Court claim, FCB, the trading company of Brandalised, alleged that it “contained defamatory words which referred to, and were understood to refer to, the claimant”.
Now FCB is seeking damages and an injunction preventing further alleged defamation.
“[Banksy’s] post, by way of innuendo, meant and was understood to mean that the claimant had stolen Banksy’s artwork by licensing images to Guess without permission or other legal authority,” argues the company in its claim.
This week the artist filed an application for anonymity with reference to the Berne Convention, and three other arguments: that his work will become less valuable, that he will no longer be free to criticise others — especially those in power — and that his family will come under increased scrutiny.
Bonadio, based at City, University of London, said: “[The convention] sets out the principle that it is not against the law for an artist to maintain anonymity.” He acknowledged that it was a “grey area that would need to be tested by the courts”.
But the academic added that there have been rulings in US states — which are English common law jurisdictions — where judges have allowed artists to remain anonymous during litigation. And in 2007 a court in Paris confirmed a similar point.
Gallagher and Banksy have had legal battles for more than a decade after FCB started selling photos of the artist’s public work.
In 2014 Banksy successfully applied for an EU trademark of his famous image Flower Thrower. However, that ruling was overturned when Gallagher appealed in 2021.
The judges noted that Banksy, who has declared that “copyright is for losers”, had long expressed disdain for intellectual property rights, and added that it was difficult for him to insist on copyright while remaining anonymous.
Last year Banksy won a separate action which confirmed his right to trademark his series of images showing chimps with sandwich boards around their necks.
Throughout the years, there have been many names linked to Banksy’s work.
One that has received the most traction is a comparatively low-key “guerrilla” artist, Robin Gunningham. The Bristolian, 50, has been identified as Banksy in several investigations over the years, most notably when scientists from Queen Mary University of London said geographical profiling suggested he was the artist.
In 2008 a picture thought to be Gunningham, taken four years earlier in Jamaica, showed him in baggy jeans with a blue shirt over a white T-shirt and wearing glasses. However, Banksy denied it was him.
What is it that sets Banksys art apart from any other graffiti artist? I remember the cleaners scrubbing off the rats he painted on the rain because they thought it was just that. Anyone else and it would be classed as vandalism.
Good for him, and as for the person suing him…Prick.
Companies suing artists pisses me off. I dunno, just can’t help but root for the talented artist over the big soulless company trying to profit off others work.
4 comments
Ben Ellery, Jonathan Ames Legal Editor Friday December 08 2023, 11.00pm GMT, The Times
While Banksy’s lawyers relied on three other arguments to maintain his anonymity, it is his reference to the Berne Convention that his lawyers found most legally appealing.
Enrico Bonadio, a reader in intellectual property law, said that while the Berne Convention focused on copyright law, it could be interpreted as giving legal backing to anonymity for artists in a range of civil proceedings.
However, he said the matter was a “grey area” in law that would need to be decided by the courts.
Andrew Gallagher and his company Full Colour Black (FCB) have filed a lawsuit accusing “the artist known as Banksy” of defamation, with the co-defendant named as Pest Control Ltd, the company that sells his artwork.
In written submissions, Gallagher’s lawyers have stated that he “reserves the right to seek an order that [Banksy] identifies himself for the purposes of these proceedings”.
Gallagher has the option open to him to make an application to remove the artist’s anonymity.
His company, Brandalised, licensed a photograph of Banksy’s work to the fashion retailer Guess last autumn for use in its Regent Street shop window.
In a now-deleted post made on November 18, Banksy’s Instagram account, which has 12 million followers, used an image of a Guess shop window with the words: “Alerting all shoplifters. Please go to GUESS on Regent Street. They’ve helped themselves to my art without asking. How can it be wrong to do the same to their clothes?”
In its High Court claim, FCB, the trading company of Brandalised, alleged that it “contained defamatory words which referred to, and were understood to refer to, the claimant”.
Now FCB is seeking damages and an injunction preventing further alleged defamation.
“[Banksy’s] post, by way of innuendo, meant and was understood to mean that the claimant had stolen Banksy’s artwork by licensing images to Guess without permission or other legal authority,” argues the company in its claim.
This week the artist filed an application for anonymity with reference to the Berne Convention, and three other arguments: that his work will become less valuable, that he will no longer be free to criticise others — especially those in power — and that his family will come under increased scrutiny.
Bonadio, based at City, University of London, said: “[The convention] sets out the principle that it is not against the law for an artist to maintain anonymity.” He acknowledged that it was a “grey area that would need to be tested by the courts”.
But the academic added that there have been rulings in US states — which are English common law jurisdictions — where judges have allowed artists to remain anonymous during litigation. And in 2007 a court in Paris confirmed a similar point.
Gallagher and Banksy have had legal battles for more than a decade after FCB started selling photos of the artist’s public work.
In 2014 Banksy successfully applied for an EU trademark of his famous image Flower Thrower. However, that ruling was overturned when Gallagher appealed in 2021.
The judges noted that Banksy, who has declared that “copyright is for losers”, had long expressed disdain for intellectual property rights, and added that it was difficult for him to insist on copyright while remaining anonymous.
Last year Banksy won a separate action which confirmed his right to trademark his series of images showing chimps with sandwich boards around their necks.
Throughout the years, there have been many names linked to Banksy’s work.
One that has received the most traction is a comparatively low-key “guerrilla” artist, Robin Gunningham. The Bristolian, 50, has been identified as Banksy in several investigations over the years, most notably when scientists from Queen Mary University of London said geographical profiling suggested he was the artist.
In 2008 a picture thought to be Gunningham, taken four years earlier in Jamaica, showed him in baggy jeans with a blue shirt over a white T-shirt and wearing glasses. However, Banksy denied it was him.
What is it that sets Banksys art apart from any other graffiti artist? I remember the cleaners scrubbing off the rats he painted on the rain because they thought it was just that. Anyone else and it would be classed as vandalism.
Good for him, and as for the person suing him…Prick.
Companies suing artists pisses me off. I dunno, just can’t help but root for the talented artist over the big soulless company trying to profit off others work.