- Twenty five years after his death, Andy Warhol’s legacy, The Andy Warhol Foundation for the Visual Arts (“Foundation”), is being sued by the iconic band The Velvet Underground partnership (“VU”) for trademark infringement. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2012cv00201/390369/1/. The case is The Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, 12-0201, U.S. District Court, Southern District of New York (Manhattan), filed on January 11, 2012. Specifically, VU’s four claims include: (1.) there are no copyrights in the banana design and is requesting such declaratory judgment, (2.) false designation of origin of the banana by the Foundation, (3.) unfair competition by the Foundation under New York common law, and (4.) misappropriation of the alleged trademark by the Foundation. The Foundation is due to respond to VU’s complaint in federal court on or before March 5, 2012.
London street artist Banksy extends his flavor of social commentary with his street art on a decaying Packard Automobile Plant in Detroit and now members of the 555 Gallery in Detroit clamor for possession of the concrete façade. During the Spring of 2010, a piece of Banksy’s street art, name reference here as Trees, appeared on the side of the now defunct Packard Plant in urban Detroit.
The Pack of Rats
When members of the 555 Gallery identified the street art as being created by Banksy, famous for his fine art and infamous for his street art, the Gallery members decided to claim it as their own by extracting it from the site and bringing it back to their Gallery, the slab of cement and all. Gallery members argue they were afraid someone would destroy the piece, but critics assert that by removing it from its original site, per se destruction of the art has occurred and its true value is lost. http://online.wsj.com/article/SB10001424052748704071304576160544164062176.html?KEYWORDS=banksy. Banksy’s commentary is part of the complete environment that surrounds his art. Street art is understood to be temporary because the artist knows it may be cleaned up, removed or replaced by property owners. Its message is fleeting, which is probably why Banksy takes a picture of his work for his own records to post on his website www.banksy.co.uk. It seems that a lot of people want a piece of the action in Detroit. Fighting over this piece of cheese, according to the Detroit Free Press, litigation is moving forward regarding the ownership of Banksy’s work. http://www.freep.com/article/20100515/ENT05/100514077/Graffiti-artist-Banksy-leaves-mark-Detroit-ignites-firestorm. The members of the 555 Gallery took possession of Trees under the pretext of protecting it. The owner of the Packard plant likely claims ownership of Trees as his property because it was created on his building. Detroit Mayor Bing claims the Packard plant owner is behind on property taxes, and it appears the Mayor wants to now claim the artwork for payment of back taxes. http://online.wsj.com/article/SB10001424052748704071304576160544164062176.html?KEYWORDS=banksy. What about Banksy, does he have any claim to legal title himself?
Banksy, under United States copyright law, has at least copyright protection as an original work of authorship fixed in a tangible medium. http://www.copyright.gov/title17/92chap1.pdf. But what if that original work was committed as part of an illegal act? Banksy’s painting of the old Packard plant is probably an illegal trespass, vandalism and destroying private property. Is it an original work of art if part of the medium is owned by someone who did not give permission to use his property as the canvas for the art? Private property is not a public forum where U.S. Constitutional First Amendment rights are protected. http://topics.law.cornell.edu/wex/First_amendment. Banksy’s work can usually be found in public places, but often on private property. Frequently those places include decaying old buildings and old bridges where the owners do not seem to care; many places are aesthetically improved by Banksy artwork. The technicality of the trespass and vandalism seems moot, because Banksy’s commentary often leaves the site much more interesting than before he left his mark. Banksy almost certainly did not anticipate that the apparent ravenous need of others to monetize his art in Detroit was greater than allowing his work to make the statement Banksy intended.
The Owner of the Packard Plant (Biosource Inc.)
Biosource Inc. has a claim to the artwork as the owner of the property where the artwork was placed. A property owner has the right to remove the artwork or assert ownership. Biosource Inc. became the de facto possessor of the artwork when Banksy created it on the building owned by Biosource Inc. The property owner can possibly rely on the Uniform Commercial Code (UCC) section 9 as adopted by the state of Michigan to assert the artwork is now a fixture of his building property. Copyright stays with Banksy, but the owner of the Packard plant has possession of the street art under legal rules and law. The property owner can also argue that the street art was a gift, so no consideration was necessary to obtain legal title of the artwork.
The 555 Gallery
The Gallery members may have had either good or nefarious intentions, but either way, the Gallery has actual possession and is claiming legal title. Let’s see, according to a Wall Street Journal article (www.wsj.com), someone at the Packard plant site during some sort of site clean-up gave the Gallery permission to take the art as it was not scrap metal. Also, the Gallery saw this piece as temporary art which needed protecting from vandals. Well, if the work was temporary and was already a form of vandalism, then what exactly needed to be protected? Also, under the UCC a fixture is something that is permanent to property as opposed to temporary and belongs to the owner of the property. http://www.law.cornell.edu/ucc/9/article9.htm. A fixture becomes part of the property when there is evidence that the thing was intended to be permanently attached to the property. This analysis can often be wrangled over between attorneys for days in a courtroom, because there is a fine line between evidence showing intent to make permanent or merely temporary. How many days do you think the attorneys will wrangle over this issue when the Walls Street Journal reports that the Gallery worked for two days with the assistance of up to 12 people, an oxyacetylene torch, a Bobcat mini-tractor, a pickup truck and a gas-powered masonry saw with a new $400 blade to make the argument that the artwork was temporary… Seriously?
Detroit’s Mayor Bing
Mayor Bing’s possible back door approach to possessing Banksy’s art seems greedy to me. It is a typical governmental work-around to get title to Banksy’s art by confiscating the entire Packard plant for back taxes and having a convenient excuse to lay claim to ownership of the art. I would not be surprised if the Mayor also attempts an eminent domain action to condemn the property for the benefit of the city. In the landmark US Supreme Court case City of New London v. Kelo, the court has set the lowest standard possible for eminent domain, making it easy for the city to take the property. http://www.law.cornell.edu/supct/html/04-108.ZS.html.
My Humble Thoughts
Physical possession is not proof of ownership when it comes to art. One must always account for provenance when it comes to artwork. Yes, there is an issue here where the Gallery will argue it was given permission by the owner’s agent to remove the art from the premises and whether or not there existed actual authority or apparent authority to give such permission. Where a potentially valuable work of art is at issue however, the Gallery should have known its act was questionable and might be considered good old fashioned stealing. For example, if I know someone is selling a valuable piece of art at a garage sale and I realize they do not know it is valuable, I can offer them $5.00 dollars for the art. If the seller takes that offer, not understanding the true value of the art, a court might want to undo that deal. I am just thinking out loud. Also, consider Nazi era and Russian art. Provenance requires that one must show true legal title to a piece of art by accounting for all transactions of the artwork from the moment it was created. Is that difficult? Yes, but you must show that everyone before you had legal title of the art in order for you to have legal title. If there is an unaccounted gap in ownership, then legal title is questionable. In the case of Russian or Nazi era art one may discover the artwork to be stolen, which requires a return of the art to its rightful owner even if one did not know it was stolen. There may be other options, but that is a discussion for another day.
So, what about legal title to Banksy’s art in Detroit? I do not know how this case will turn out and there is no guarantee of any specific outcome, but I think the owner of the Packard plant will retain legal title of the art if he can keep ownership of his building. Are there some good lessons to be learned here? Lets see, Finders Keepers is not a rule of law. Just because you found something does not give you the right to keep it. If you need to use heavy machinery to extract an item from someone’s property, it is probably a fixture, which was meant to be permanent. Also, pay your property taxes so someone does not try to sweep your ownership rights out from under your feet. Imagine buying this cement slab with Banksy’s artwork on it for $100,000 just to find out you do not have legal title to it and you must return it to its rightful owner? Who was that again? Good luck getting your money back. Make sure the owner of the art has legal title before browsing turns to buying. I wonder if Banksy anticipated that rats would be fighting for his cheese. www.banksy.co.uk
To see more images of Banksy’s work, go to www.banksy.co.uk. Also, The Wall Street Journal has a slide show of Banksy’s art. http://online.wsj.com/article/SB10001424052748703807904575097390289305972.html.
Disclaimer: The discussion here is commentary by the author and does not constitute legal advice.
Copyright 2011- DeGeorge Law LLC www.degeorgelaw.com