“We’ve been Banksy-ed”: Intellectual Property Ramifications of Self-Destructing Art

On Friday night, October 5, 2018, attendees at Sotheby’s Auction House in London, got quite the surprise.  Moments after being sold for $1.4 million (£1,042,000) to the highest bidder, the painting, “Girl with Balloon,” proceeded to self-destruct.  The artist, Banksy, took credit for the stunt, posting the phrase “Going, going, gone…” on his Instagram page.  He also left a video, explaining, “a few years ago I secretly built a shredder into a painting…in case it was ever put up for auction.”

The incident raised concerns over what would happen next.  Under the terms of the contract, would the purchaser be required to pay for the destroyed painting?  To what degree was Sotheby’s responsible? Would the value of the painting increase or decrease as a result of its shredded state?  The unique situation certainly elicited a number of interesting contract law issues.  However, perhaps less obvious, are the thought-provoking intellectual property and property issues that the stunt raised as well.

The infamous artist, Banksy, is no stranger to bringing intellectual property issues to the forefront as a results of his antics.  For instance, his graffiti murals, have caused legal scholars to question who owns street art?  Do murals belong to the artists that paint them, the owners of the property on which they are painted, or to the city? Does it matter if the graffiti is painted illegally?  Further, even if graffiti artists are said to have a claim to their work, once that art has passed out of the artist’s hands into the ownership of someone else, what protection does the artist then have? 

While the answers to these questions are not always clear, in the United States, under both federal law and some state laws, artists may retain certain rights to their artwork even if the artist no longer owns the art.  These are known as moral rights.  The Visual Artists Rights Act of 1990 (VARA) was the first federal act to give visual artist the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation…and…any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” 17 U.S. Code § 106A(a)(3).  Under the Act, artists are afforded a remedy (an injunction or monetary damages) in the event that an owner or buyer of the artwork destroys (or threatens to destroy) the piece.  For example, in a recent federal case in February 2018, graffiti artists successfully used VARA to claim $6.7 million in compensation for the destruction of their work when a building manager whitewashed over their murals on the 5Pointz building in Queens, NY. 

Returning now to “Girl with Balloon,” it is fair to assume that, under American jurisdiction were the buyer of the painting to destroy the artwork, Bansky would be protected under VARA.  However, the exact opposite is what occurred at Sotheby’s!

At the Sotheby’s auction, it was Banksy, himself, who destroyed his artwork.  Further, while VARA provides a remedy when the destruction of art is “prejudicial” to the honor or reputation of the artist, here, Banksy suffered no prejudice.  In fact, ironically, by destroying his own work, Bansky actually enhanced his own reputation.  It is clear that VARA simply cannot apply to such a situation.

So now what?  Doesn’t an artist have the right to destroy his own work?  Of course, the answer is not so simple. 

The right to destroy, traditionally known as jus abutendi is an inherent component of the right to property.  Although it rarely explicitly mentioned in municipal law, it is  “implicitly recognized in virtually all legal systems.”  If one buys, and thus comes to own, a piece of cake, the owner has the right to eat (and thus, destroy) it too.  Seemingly, this same inherent right should apply to artwork as well.  In fact, renowned artists such as Claude Monet, Georgia O’Keefe and Michelangelo were known for destroying some of their work

However, VARA was seemingly implemented because we as a society value the preservation of the artwork itself.  For policy reasons it might be best to use the law to deter artists from destroying their work so that future generations may enjoy them.   Moreover, an artist destroying their art while it is in their own possession is one thing— but destroying the art once it has become someone else’s property through a sale, should undoubtedly be treated differently.

Do we now need a specific law or legal framework that applies to this exact situation to protect buyers from destruction of the artwork by the artists themselves?  Perhaps contract provisions that protect consumers by accounting for the destruction of the paintings due to unforeseen circumstances are sufficient.  However, conceivably a differently solution is in order.  Maybe the VARA statute should provide an explicit exception.  Maybe the buyer should sue the artist to initiate a case of first impression that would generate a legal precedent. While the latest Bansky stunt is unique, it still deserves some thought because it is not unfeasible to think that Bansky admirers would replicate it in the future.

In the current case, the buyer of the “Girl with Balloon” decided to keep the painting in its shredded state and go ahead with her purchase.  Experts at Sotherby’s chose to look at Banky’s act of destruction as one of creation instead.  Alex Branczik, Sotheby’s head of contemporary art, Europe, said: “Banksy didn’t destroy an artwork in the auction, he created one.” Banksy has given the “transformed” artwork the new title, “Love Is in the Bin.”  

Granted, the question of what is considered art is likely to be pondered forever. However, this “solution” avoids addressing the legal issues. While artists continue to debate what art is, lawyers should begin to construct a solution that will avoid anyone’s’ property rights from falling “In the Bin.”

Sarah Sue Landau is a J.D. candidate, 2020, at NYU School of Law.