The Banksy artwork depicting a prison break (reported here) on the side of Reading Prison has generated much interest including calls from the creative and dramatic industries to turn the prison into a space for the arts.  Kate Winslet joined the campaign against the Ministry of Justice’s intentions to tear down the building, joining Kenneth Branagh and Natalie Dormer.

Interestingly, the campaign could look to intellectual property law to protect the work (which has sadly already been vandalised) and the Ministry of Justice should seriously consider the risk of copyright infringement if it did decide to demolish the wall and Banksy work.

The prospect of the Ministry of Justice infringing the copyright of a Banksy by demolishing the building is just too good good to be true – it begs the question if the building is to be demolished could Banksy get an injunction to protect (at the very least) the painted section?

Copyright

First things first – is street art protectable under copyright? To qualify as a protected “artistic work” within the copyright regime it must fall within the definition of a “graphic work, photograph, sculpture or collage, irrespective of artistic quality”. This definition of “graphic work” includes painting. The work must also be original and fixed in a tangible medium of expression.  The aerosol art of a prisoner escaping, thought to resemble Oscar Wilde, will most likely pass the originality bar as it is a work of Banksy’s own intellectual creation (provided he didn’t copy any elements of it) and the paint on the wall is the fixed medium of expression.

But is there a difference between street art and graffiti? Graffiti could be considered vandalism under the Criminal Damage Act 1971 and there is a risk (sadly) that the Banksy work could be considered an act of vandalism.

Copyright and street art

Could this prevent the work of art (and any street art) from being granted copyright protection? Well not all original works captured on a medium of expression are protected by copyright.  And on public policy grounds some original works will not be granted protection under the copyright regime.

The circumstance in which a work has come into existence can effect the decision on if it is granted copyright protection. There is an interesting case in which this occurred. A former British spy wrote a part exposé, part memoir based on their time working for military intelligence. The book was written and published in breach of a duty of confidence due to the British government.

The case is A-G v Guardian (No.2) [1990] AC 109, also known as the Spycatcher case, and the House of Lords held that the ‘disgraceful circumstances’ under which the work was created prevented it from being protected by copyright. In that case it was noted that English courts have not looked kindly on original works where the work contained false statements calculated to deceive the public (Slingsby v. Bradford Patent Truck and Trolley Co. [1905] W.N. 122 [1906] W.N. 51) and where the work was of a grossly immoral tendency (Glyn v. Weston Feature Film Co. [1916] 1 Ch. 261).

As a result it is arguable that a work of street art by Banksy could suffer a similar fate if it could be considered the creation of the art to be similarly disgraceful or grossly immoral – but this seems unlikely. Given the satirical nature of the Banksy works, it is hopeful that they would be granted protection (despite the possibility of it being considered vandalism).

Regardless of this, Banksy has said in the past that copyright is for losers (but obviously that doesn’t apply to people who blog about it) and so there is a chance that he would not assert his ownership in the work even if he/she could.

Trade marks

Banksy has, in the past, had issues with trade marks around the use of his artwork and had a trade mark cancelled for the work ‘Flower Bomber’. However, it was considered that the application had been in bad faith because Banksy was not using the work as a trade mark, there was no intention to do so and any such use subsequently was to avoid it being cancelled for non use, rather than being genuine use.

The EUIPO noted in that decision that illegal graffiti cannot be protected by copyright because it is produced through the commission of a crime and this ruling highlights the further difficulties that Banksy would face when trying to assert copyright ownership, even if done through Pest Control Office, the company that acts as Banksy’s legal representative.

In order to assert ownership of copyright, Banksy might have to reveal his/her identity and therefore it is unlikely that any assertion of copyright ownership will take place. Still hopefully, the presence of a Banksy on the wall will be enough to persuade the Ministry of Justice to turn the site into an arts venue. With Kate Winslet promising to perform on the opening night who could argue against that?