The case of the guerrilla artist

Defamation case involving Banksy prompts questions on whether anonymous artists can be proceeded against in court

THE FAMOUS GRAFFITI-STREET artist Banksy (known as ‘Britain’s unlikeliest national treasure’) is being sued for defamation for over 1.3 million pounds over his use of Instagram to urge shoplifters to strike a Guess (a branded clothing chain) store. Banksy’s work can be found online, or on the walls of a variety of places in Bristol, London, New York, Bethlehem, Kyiv and Detroit. More recently, one of his works of art that shreds itself sold for 18 million pounds. Who is Banksy? That is a matter of much speculation. And it is this self-enforced legal character of anonymity that throws up fascinating questions.

First,letusaddresssomepreliminarydefinitions. The term “graffiti” comes from the Italian word “graffiato” or scratched — designs scratched into the surface. Graffiti is usually simple words that are spray-painted withoutpermission.itisdifferentfromstreet art — which is typically commissioned and legal. By the late 1970s, graffiti and street art startedmergingasyouthstartedspray-painting images in cities. This spray-painting was done without permission. You can see commissioned street art in Delhi in Lodhi colony and Shahpur Jat. While clearly not commissioned, graffiti can be seen in a multitude of streetsinthecapital.banksyfollowsaunique modelofstreetartwithgraffiti-likequalities. His works are done clandestinely without the permission of authorities but are elaborate artworks with a message.

Now back to our defamation lawsuit. Banksy alleges that Guess used his work without his permission. The image in question is a striking one — a youth wearing a mask in a fighting pose throwing a bouquet of flowers. Here the flowers replace the traditional weapons of rioters/fighters/rebels —Molotovcocktailsorrocks.guessusedthis on their storefronts. The company alleges defamation since those who viewed the Instagram post including Banksy’s 12 million followers will believe that Guess had stolen Banksy’s artwork. This case is expected to be decided shortly.

Importantly, the defamation claim has resulted in not only the likely identification of this anonymous and reclusive artist, it also brings forth larger issues of whether anonymous artists or creators can be proceeded against in court and, correspondingly, defend their interests in their work and reputation. Can an interest only be protected when the owner asserts her identity? What, then, of anonymous social media accounts that may create art or allegedly defame people?

In the defamation case, the identity of the artist Banksy, while much speculated about, is still largely unknown. Is this one person? Or a collective of artists? Many

British newspapers have speculated that Banksy is in fact the pseudonym of a Bristol artist, Robin Cunningham. The co-defendant in the defamation suit is the artfully named Pest Control Ltd, a company established by Bansky that sells his art. Robin Cunningham is the other defendant. If Robin Cunningham is proven to be Banksy, he may not only be liable for defamation but also may be wanted by the authorities in multiple jurisdictions on charges of trespass and damage to private property.

Banksy as an anonymous artist pushes more legal boundaries — not just in defamation law but also in copyright and trademark law. In 2018, lawyers on behalf of Banksy had successfully applied for trademark protection of his work within the European Union. Banksy asserted these interests when a greeting card company used his famous image of a monkey wearing a placard on one of their cards without taking the artist’s permission. Banksy’s artwork is called “Laugh Now” and comprises 10 monkeys — six carry a sign with the words “Laugh now one day we will be in charge” while four have empty placards.

This dispute resulted in a court case titled Full Colour Black Limited (the card company) v Pest Control Office Limited (Banksy’s representatives who handle his intellectual property interests), that was decided by the Cancellation Division of the European Union Intellectual Property Office on May 18, 2021. The card company’s lawyers argued that Banksy had proceeded in “bad faith” since the work that is sought to be registered is a “work of graffiti sprayed in a public place”, and that is “free to be photographed by the general public and has been disseminated widely”. They further argued that Banksy himself in his book Wall and Piece wrote that “copyright is for losers”.

The ruling discusses important issues of monopolisation of artwork and anonymous artists. Since Banksy cannot be identified, “would (this) hinder him from being able to protect this piece of art under copyright laws without identifying himself, while identifying himself would take away from the secretive persona which propels his fame and success”? The Cancellation Division eventually found in favour of the applicant or the card company that sought cancellation of Banksy’s European Trademark.

Indian law is seized of the question of the assertion of an anonymous artist’s interest. Section 23 of the Copyright Act 1957 asserts that in the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist for 60 years. This includes the protection of the anonymous work of joint authors. Section 53 of the same statute provides a definition of “owner of copyright” as being either an exclusive licensee or an anonymous publisher. Undoubtedly, these and many other questions will come to court, as anonymous creations of art and words not only on walls in our cities but also in the unwalled world of social media will permeate our consciousness. Will this result in the decline of the anonymous artist or in the increased need to protect her?