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Banksy’s Riddle. How copyright turns to be powerless


Gadzhimurad Akhmedov, lawyer

Source: Forbes

British street artist, Banksy, claims that the exhibition organized at the Central House of Artists has nothing to do with him. The reason for his amazement is quite clear: it is the artist’s guiding principle not to charge money from people for seeing his works, while allowing for only voluntary donations, and, according to media reports, the Russian organizers will receive an income of 180 million rubles from the exhibition.

The big red poster, inviting to the exhibition of works of Banksy – the British street artist, was hanging on the walls of Moscow Central House of Artist since the beginning of the summer. And only in mid-August, shortly before the closure of the exposition, a big scandal broke out: it turned out that Banksy heard nothing about the fact that his works were on display in Moscow. The exhibition organizers fully justifiably counted that the British artist would not make a claim against them. And even though copyright was still violated, it is unlikely that they are under threat of any litigation.

It’s better to stay away

As it became known from the screenshot of his Instagram correspondence with one of his fans, Banksy states that the Moscow exhibition has nothing to do with him. The reason for his amazement is quite clear: it is the artist’s guiding principle not to charge money from people for seeing his work, while allowing for only voluntary donations, and, according to media reports, the Russian organizers will receive an income of 180 million rubles from the exhibition.

But the artist is intending to undertake no steps to protect his rights. Banksy ironically said to his fan that he was probably not a suitable person for complaints about the display of his works without his permission. The publication of this correspondence also could not hurt the organizers, which served an additional enticing newsbreak before closing already successful exhibition of Banksy’s works.

The organizers of the Moscow exhibition confirm that they did not even try to contact Banksy – they allegedly “decided against exacerbating the already quite incomprehensible relationship with the artist, because, despite the fact that nobody is aware of his identity, the artist works with a remarkable team of professionals who track it all”. They could easily predict that Banksy himself would not advance any claims against them, given the nature of his art work and the position repeatedly stated about other exhibitions. And for the “remarkable team of professionals” it will not be easy to uphold the rights.

No rights without consent

The organizers are confident that they have not violated anyone’s rights, since the exhibition exclusively shows the authored works, that is, copies of originals made by the author himself (making such copies of wall graffities is a common practice). The authored Banksy’s works are really being exhibited around the world. Ex-fellows of the artist who received copies of his work create entire museums, the entrance to which is far from being free (for example in Canada the charge of CAD 32 (that is, more than RUB 1500) will have to be paid.

The Civil Code of the Russian Federation recognizes the right of the owner of the work for its exclusive use. According to the general rule the original copyright holder is recognized as the author, i.e., the person through whose creative effort the work of art has been created. However, rights to works of art may be alienated by third parties. The organizers of the Moscow exhibition of Banksy’s works refer exactly to this fact claiming that they purchased works or copies of works already alienated by the author, and now the artist cannot control where and under what conditions the display of his works is carried out.

Pursuant to Article 1291 (2) of the Civil Code, “the purchaser has the right to demonstrate the original product title to which was acquired by him and to reproduce it in the catalogs of exhibitions and in publications devoted to his collection, as well as to transmit the original work for demonstration at exhibitions organized by other persons without the consent of the author or other copyright owner and without payment of remuneration to him”. It means that a person who owns the original (or copyrighted author’s copy) of Banksy’s works does not receive exclusive rights to it. This person cannot permit or prohibit the reprocessing of the work, distribute its copies, but has the full right to present a work or to transfer the original to other persons for demonstration at exhibitions.

But the problem is that the Central House of Artist demonstrated not only demonstrates works with known owners. The exhibition also demonstrated projection of images left by Banks on the walls, visitors were met by a film about the artist, in which some of his works were shown. Did the exhibition organizers have the right to do this?

The Civil Code says that a public display of a piece of art is one of the ways to use it. That is, Banksy, who places his graffiti on the walls of buildings – i.e. places accessible to the general public, from the point of view of intellectual property implements his exclusive right to public display of the work of art. Does this mean that the author is deprived of his right to work and can any person use his work to organize exhibitions around the world? Not at all. The Civil Code prohibits the use of such works freely for commercial purposes and without the consent of the title holder.

It turns out that the organizers of the Moscow exhibition had the right to exhibit the authored Banksy’s works, but did not have the right to use photographs of other works to create projections and films for the exhibition. Such actions themselves constitute violation of the exclusive copyright of the author. For all this, you need an additional permission from the author, which Banksy did not grant.

No litigation on the horizon

Banksy or his “team of professionals” could sue the organizers of the Moscow exhibition. And not only because of the display of unauthorized works. There is another delicate nuance: Banksy’s works were also displayed at the banner of the exhibition, which contained advertising for sponsors, a major mobile operator, radio station and reputable software developer. And this is clearly beyond the scope of powers granted to the owner of the original work by Article 1291 of the Civil Code of the Russian Federation (demonstration at exhibitions).

In the court, Banksy could demand to have the exhibition banned, as well as claim material compensation in the amount of double cost of the right to use the work, which is determined on the basis of the price usually charged for the presentation of the pictures for the exhibition. The author has fairly good chances of obtaining a decent compensation (about 360 million rubles), as well as obtaining a ban on the display of works (this is especially important, since after the Moscow exhibition the organizers are going to hold an exhibition in St. Petersburg, and then in France, Italy, Spain and Mexico).

But the court hearing is unlikely to take place, because there is no claimant to be found. Banksy is almost a myth himself; we cannot even be sure that all works under his authorship really originated from one person. It would be too much to have his incognito revealed through an exhibition about which he learned almost by accident. It will also be hard for the team of professionals, which supposedly surrounds the artist, to litigate. They would have to somehow prove that they represent the author of the work, and it is almost impossible to do this, even revealing the identity of the artist. Moreover, Banksy does not always sign his works.

Most likely, the organizers and sponsors of the Moscow exhibition are well aware that they are violating Banksy’s copyright. And the situation smells bad from an ethical point of view – there was nothing in the way of, at least, keeping the formal courtesy and contacting the artist or his team of professionals. The following strong statements made by the producers and an attempt to “be proud” of Banksy himself mentioning the exhibition, too, does not play into the organizers’ favor. But they perfectly understand that nobody will lodge a claim against them and no material compensation will be required. And, unfortunately, copyright is powerless against people who may be held back only by this under such circumstances.

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