In 2003 Stonefield Estates Ltd granted a 19 year lease of a Folkestone amusement arcade to Dreamland Leisure Ltd. In late September last year, during the Folkestone Triennial art project, Banksy used a buff-coloured exterior wall of the arcade as a “canvas” on which he painted an image of an elderly lady, listening to an audio guide, studying a short classical column with nothing on it. He painted the part of the wall “above” the empty pedestal grey. Apparently his name for the picture was “Art Buff”.
The local council protected it with a large sheet of clear plastic; but a month later the tenant removed the entire artwork and the rendering on which it was painted and then arranged for it to be exhibited in art galleries in the US, where however it did not sell. Litigation ensued and the artwork returned to England where, last month the High Court decided it belonged to the Creative Foundation, an arts charity to which the landlord had assigned all its rights.
The tenant argued that the removal of the artwork and rendering was performance of its repairing covenant and that, once the rendering was removed, both it and the artwork on it became a chattel to which it as tenant was entitled. Its argument was based around the idea that, when repairs generate debris, no-one argues that the tenant needs the landlord’s permission to dispose of the debris! In this case the debris was said to be worth between £300,000 and £470,000.
The Judge took little time in deciding that, as between the landlord and the tenant, the artwork, once severed from the building, became the landlord’s property. Although the judgment referred to Banksy’s moral right of integrity, i.e. his legal right not to have his work altered or subjected to derogatory treatment, this point was not at issue. The question remains to be answered as to whether a graffiti artist could prevent a property owner altering removing his or her work.
But one suspects any test case on this point won’t be brought by Banksy.