Tag: Banksy

The Vatican Faces a Copyright Infringement Lawsuit

Street artist Alessia Babrow has sued the Vatican, alleging that the Philatelic and Numismatic Office of the Vatican City State copied her artwork without her permission and reprinted it as a stamp. The art was a painting of Jesus by nineteenth-century artist Heinrich Hofmann, to which Ms. Babrow had added the slogan “just use it.” Besides neglecting to request Ms. Babrow’s permission, the Vatican allegedly only credited Hofmann, and not Ms. Babrow, for the derivative work. Ms. Babrow is seeking approximately $160,000 in damages and reportedly turned down a private visit with the Pope in favor of continuing her lawsuit.

The remaining summaries of news headlines are separated by region for your browsing convenience.

 UNITED STATES

Graffiti Cleanup Effort Leads to VARA Lawsuit

Aerosol artist Michael McLeer a/k/a Kaves has sued the New York Police Department for painting over some of his outdoor artworks in New York City that he claims were made with full authorization of the property owner. One of the works that the NYPD allegedly painted over had been in place for 13 years. The lawsuit claims that the NYPD allegedly failed to inquire into the permitted status of the art prior to painting over it. Kaves has sued under the Visual Artists Rights Act (VARA), which has previously been used successfully to protect street art. The matter was filed before the federal court in Brooklyn, the same court in which the now-famous 5Pointz case involving destruction of street art originated.

Painting Stolen by Nazis Finds Home in Oklahoma

Camille Pissarro’s La Bergère Rentrant des Moutons (Shepherdess Bringing in Sheep) (1886) was the subject of an almost 10-year restitution saga led by Holocaust survivor Léone-Noëlle Meyer, whose parents were the lawful owners of the artwork when it was looted by the Nazis in 1941. The artwork was donated to the University of Oklahoma in 2000 by Clara Weitzenhoffer, a subsequent good faith purchaser for value. In 2016, Ms. Meyer reached a settlement with the University of Oklahoma, in accordance with which the artwork was to travel between the United States and France every three years. Ms. Meyer subsequently tried to invalidate the settlement, in part given the subsequent passage of the Holocaust Expropriated Art Recovery Act of 2016, which would have benefited her restitution efforts. After facing significant setbacks in her legal case, including fines for breaching the terms of the agreement, Ms. Meyers has discontinued her efforts to invalidate the 2016 settlement. Now, the painting will be on display on a rotating basis in France and at the University of Oklahoma.

Corita Kent’s Art Studio Granted Landmark Status, Escapes Demolition

Artist Corita Kent, a former Catholic nun who became a Pop artist and an activist, was inspired by Andy Warhol’s 1962 Ferus Gallery exhibition to address the pressing issues of racial and social injustice through art. Her studio in Los Angeles became a gathering spot in the 1960s for female activists. When the studio was slated to be razed and turned into a parking lot by the current property owner, the Corita Art Center called for the studio’s preservation, noting the shortage of cultural landmarks celebrating women’s heritage in Los Angeles (only 3 percent of the cultural monuments in Los Angeles represent women). The Los Angeles City Council agreed to grant landmark status to the studio.

EUROPE

Artists Who Sell Directly to Collectors Are Not “Art Market Participants” Under New UK Law

On June 10, a new anti‒money laundering regulation came into full force in the United Kingdom, under which art market participants (AMPs) who sell artworks for €10,000 or more must comply with the new regulations, including verification of clients’ identity, due diligence on each transaction and involved compliance programs. In a relief for artists, however, the UK Treasury recently announced that artists will not be considered AMPs and will therefore not need to comply with the new costly regulations. Welcome relief it may be, but too late for many artists who already undertook the expense to comply with the regulations.

Banksy’s Work May Not Be Protected by Either Copyright or Trademark

Famously anonymous street artist Banksy’s words, “copyright is for losers,” are coming back to haunt him as his representatives lose another trademark battle to protect one of his artworks against commercial exploitation by third parties. Pest Control Office Limited, the company that holds itself out as responsible for issuing certificates of authenticity for Banksy, filed a number of applications for trademark protection, in the United Kingdom and abroad for some of Banksy’s works. One such graphic trademark, consisting of Banksy’s image of a monkey wearing a sandwich board, was held invalid by the European Union Intellectual Property Office (EUIPO). The application for declaration of invalidity was brought by a greeting card company that had copied Banksy’s work for use in their greeting cards. The EUIPO cited Banksy’s explicit statements that the public is free to use any copyrighted work, as well as the artist’s elusive identity, making it difficult to protect his artworks under copyright laws, as factors in its decision. Similar applications to invalidate other trademarks of Banksy’s artworks are to be heard by EUIPO within the next month or so. The outcome is likely to be similar.

Oxford Classics Professor Accused of Selling Stolen Art to Hobby Lobby

Craft chain Hobby Lobby filed suit against an Oxford University professor of classics for allegedly selling Hobby Lobby $760,000 worth of stolen ancient Egypt art. According to the complaint, Hobby Lobby made many purchases of art from Dr. Obbink over the course of three years to include in Hobby Lobby’s planned Museum of the Bible, but the art it received had allegedly been stolen from Oxford University’s Sackler Library. Obbink had represented to Hobby Lobby that he was selling papyri that came from private collectors. Hobby Lobby has returned the art to Oxford.

© 2021 Wilson Elser

ARTICLE BY Jana S. Farmer and Sarah Fink of
Wilson Elser Moskowitz Edelman & Dicker LLP
For more articles on art law, visit the NLRIntellectual Property section.

“Bank For Your Buck” – The Legal Implications of Banksy’s Destruction of “Girl with Balloon”

For centuries, artists have been celebrated for pushing boundaries and shaping how society should view art. As members of the audience, we rely on artists to expose us to these unique dimensions of thought and we return the favor by placing value on their creations. For the past twenty years, one anonymous artist has continuously thrilled his audience by publicly displaying his work throughout the streets of major cities. Banksy, as the public knows him, has once again shocked his audience, this time at the Sotheby’s auction of one of his most famous graffiti pieces, “Girl with Balloon.”

However, the $1,037,000 record breaking bid price was not the cause for headlines after the sale. In pure avant-garde fashion, immediately upon the sounding of the auctioneer’s hammer, the frame securing the piece proceeded to shred the bottom half of, “Girl with Balloon.” The bidder, who remains anonymous, said that she is planning to keep the shredded piece, and “realized that [she] would end up with [her] own piece of art history.”[1] However, what if the owner had not had such an optimistic outlook on the prank, could she have legally deemed the sale void?

Under the Uniform Commercial Code (“UCC”), “a sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner.”[2] While the sounding of the hammer indicates the transfer of ownership, this does not necessarily also indicate a transfer of liability. The UCC and Sotheby’s terms of sales state that the “risk of loss passes to the buyer upon her receipt of the property or on tender of delivery.”[3] In sum, liability is imposed on the party who has physical possession of the artwork. If the buyer receives the goods in a condition that does not conform to the condition the buyer reasonably believed the goods to be in at the time of the sale, under the UCC, a buyer may revoke her acceptance of the goods.[4]

As applied to, “Girl with Balloon” once the hammer struck, the ownership of the piece transferred from the hands of Banksy’s agent, Sotheby’s, to the anonymous bidder. However, since the piece immediately shred upon finalization of the sale, there was no actual physical transfer of the artwork. Between the time of the sale and the shredding, the piece was still mounted at the Sotheby’s auction house, therefore under the company’s liability. Since the art work was damaged while under the possession of Sotheby’s, under the UCC, it is likely that the anonymous buyer could have canceled the sale.

Moreover, there is also the issue of the price appraisal of the artwork. Buyers rely on auction houses like Sotheby’s to provide them with a guideline of establishing the value of pieces of art, in particular their reserve price (the minimum bid price for a piece). Sotheby’s set the reserve price for “Girl with Balloon” to reflect the piece in its original creation and it is unclear how the piece will be valuated post alteration. However, members of the art world seem to believe that this was not a destruction but rather a reincarnation of the piece. One art broker, Joey Syer, believes that Banksy’s prank contributed to art history, adding a “minimum 50% to its value.”[5]

If Syer’s estimates are true, could Sotheby’s in return bring a claim against Banksy for transforming his piece without their knowledge, thus manipulating the reserve price? Banksy admits to orchestrating the prank, and even recently revealed that his initial intention was to shred the whole work, but a mechanical error stopped the shredder at the bottom half of the piece.[6] It is unclear if, when Sotheby’s inspected the piece, they were aware of the shredder within the frame and if that was incorporated in their valuation of the piece. It is quite likely that Banksy did not disclose the shredder to Sotheby’s, who could potentially bring an action against Banksy for fraudulent concealment. Sotheby’s could make the claim that, by not disclosing the shredder, they misevaluated the piece and set the reserve price lower than its worth. Thus, had they set the reserve price higher, the piece could have sold for more, guaranteeing a greater commission for the auction house.

As of now, the parties and fans around the world view this as a positive occurrence. Sotheby’s head of contemporary art, Alex Branczik does not seem worried about the trick and views this as, “the first artwork in history to have been created live during an auction.”[7] Once again, Banksy has played with his audience’s conception of art, and the future valuation of the newly named, “Love in in the Bin,” will reveal whether the joke is actually on us.

[1] https://www.bbc.com/news/uk-england-bristol-45829853

[2] Uniform Commercial Code § 2-328

[3] Uniform Commercial Code § 2-509

[4] Uniform Commercial Code § 2-512

[5] https://www.telegraph.co.uk/news/2018/10/06/banksy-shreds-girl-balloon-p…

[6] https://www.cnn.com/style/article/banksy-video-girl-with-balloon/index.html

[7] https://www.bbc.com/news/uk-england-bristol-45829853

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.