Banksy needs to protect his Image Rights – Where Art irritates Life

Once again an artist’s work is being exploited by someone other than the artist.[i]  Street artist Banksy is about to lose his rights in his artwork. Because his work is somewhat fleeting in nature, his work is graffiti on public buildings, the copyright in the work is somewhat fleeting as well.  To safeguard his name and work, Banksy registered a stylised representation of his name with the European Union Intellectual Property Office in 2018.[ii]  He also registered a number of his famous works as trademarks.  Currently, his “flower bomber” mark is under attack by Full Colour Black, a company that “specialises in the commercialisation of world-famous street art.”

How can Banksy protect himself and his works?  The Guernsey Image Rights legislation would be an ideal solution to this problem. Copyright has failed to protect the work as has traditional trademark law.  The registration of an Image Right allows a registered proprietor exclusive rights in the images associated with a registered personality.  It provides the sole rights to the commercial appropriation or exploitation of a person’s identity and associated images linked to that person. These images are related to the distinctive expressions, characteristics or attributes of, or associated with, a personality made available to public perception. Image rights are an integral part of artistic expression.

What does it mean to be artistic? The view that “art is imitation (representation)” no longer holds true in art theory, rather it has been replaced with “art is expression”.  Instead of reflecting states of the external world, art is held to reflect the inner state of the artist. This, at least, seems to be implicit in the core meaning of expression: the outer manifestation of an inner state.”[iii]

The creation of a work of art is the new and varied combination of elements in a medium.  Every picture tells a story. The story may be about the human condition, about society’s plight, about the artist’s personal experiences, or even about art itself. As beholders, we witness a story told by the artist. The creative process is a self-expressive process. The artist alone has the right to decide who, when and how this expression should be exploited. Banksy has been forced to open a pop-up store in Croyden to sell goods with his trademarks on them.  He has been told this is the only way to preserve his rights in his expressions.[iv]

The world of artistic expression is a marketplace in which resources are scarce. Banksy’s choice is limiting how he chooses to express his personality.  Trademark law may not be the best fit for this choice. Guernsey saw the gap in protection and crafted legislation to meet this sort of need.  Everyone should be allowed to express themselves without running the risk of someone else exploiting them.

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[i]See David Slater’s Monkey Selfie, http://www.icondia.com/library/monkey-see-monkey-protecting-photographers-serendipitous-fixation/

[ii]https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/4/EU012575114

[iii]https://www.britannica.com/topic/philosophy-of-art/Art-as-expression

[iv]http://www.2oceansvibe.com/wp-content/uploads/2019/10/banksy-12.jpg

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