Stealing Banksy? Finding the Legality in Illegal Street Art
In Part 1 of this series, we discussed Sincura’s incendiary practice of removing and selling Banksy’s street art. Sincura’s actions raise a litany of questions surrounding the moral and legal landscape of street art culture: Are these works property of the artist or the public? Should the artist have a say in whether a work is removed or destroyed? Does the crime of theft outweigh the initial crime of vandalism? As a society we essentially answer these questions through the way we choose to govern this type of art. Some areas of our law clearly reflect the artistic value we place on graffiti art, while other areas of the law impose penalties for artists who use the property of others as their canvas.
Copyright offers broad protection to artists upon the moment they create their work. In order to acquire copyright protection, a work must be original and fixed in a tangible medium of expression.  First, “originality” essentially means that the work owes its origin to its author, and is not a copy of a previously existing work. Secondly, “fixed” requires that the art is literally stable enough to be perceived or reproduced. Contrary to popular myths, copyright protection does not require any bureaucratic paperwork or little “©” symbol next to an artistic work.
For example, lets take Banky’s iconic rat stencil pictured to the right. First, the work became “fixed” in the wall (“a tangible medium”) the moment Banksy sprayed paint over his rebellious rodent stencil. A viewer can perceive and enjoy this clever little creature, thus satisfying the fixation requirement. Secondly, the work as a whole is “original.” In other words, Banksy created the piece himself, and did not outright copy the expression of another artist (Although Blek Le Rat supporters may argue otherwise). Conversely, Banksy did not create the “anarchy” symbol embodied in the rat’s picket sign. In legal terms, this icon of the punk rock movement is not “original” to Banksy. Thus, Banksy would not own the copyright in this symbol. However, Banksy does own the copyright in the portrayal of the rat and anarchy sign together in the original and iconic work of art. Finally, Banksy’s ownership of the copyright to his work survives its destruction or sale. Thus, legally, Banksy alone has the right to produce or sell copies of this anarchistic animal, regardless if it is destroyed, removed, or sold. For more information on which rights copyright protects, click here
Do Illegal Works Qualify For Copyright Protection?
Intuitively, it would seem that the law would strip Banksy of all of his rights regarding his graffiti. This is not the case. But, he defaced public property! He ruined that fine cement wall! This is Obama’s fault! Notwithstanding such elegant legal arguments, copyright law is neutral towards the legality of how a work was created. Arguably, Banksy would still receive copyright protection if he sprayed one of his maniac marsupials (last pun I promise) across the White House itself. Instead, we choose to punish such mischievous deeds through both civil and criminal law. In California, one of Banky’s stencils could land him in jail for up to a year or up to a $10,000 fine.  One reason for this legal dichotomy lies within the nature of what copyright actually protects. See, Banksy owns the copyright only in the expression of his art, and is entitled to no right over the physical copy of such expression. The lucky owner of that defaced cement wall still retains the property right over their wall, and can freely do with it as they please. Herein lies the reason Sincura is legally allowed to remove and sell Banksy’s villainous vermin (I’m sorry, I couldn’t help myself).
When viewed in context, it makes sense that a property owner can freely dispose of or sell their defaced property. They neither asked for, nor sanctioned, Banksy’s activity, and thus should not have to restrict their rights based on his illegal actions. In fact, protection of a property owner’s rights is Sincura’s main justification for their actions. I think the graffiti artist community would agree.
Not every graffiti artist is Banksy. The average street artist can’t sell a spray painted rat for millions of dollars. The majority of street artists create their work knowing that it will likely be destroyed the very next day. However, they assume this risk for the opportunity to change and shape the aesthetics of our community. The rebellion at the heart street art movement lies within changing what others have forced society to resemble. We are not given the choice whether to endure the constant bombardment of advertising that covers our community. Graffiti artists believe that such a choice should lie with the community itself. Banksy sums this up nicely in his manifesto, Wall and Peace:
“Imagine a city where graffiti wasn’t illegal, a city where everybody could draw whatever they liked. Where every street was awash with a million colours and little phrases. Where standing at a bus stop was never boring. A city that felt like a party where everyone was invited, not just the estate agents and barons of big business. Imagine a city like that and stop leaning against the wall – it’s wet.”
Tune in next week for our final entry in this series, in which we will discuss the evolving landscape of street art culture and the other legal theories artists can use to protect their work.
————————————————————————————————————– 17 U.S.C.A § 101  California Penal Code § 594