“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.
