To be or not to be Banksy-ed? The great legal question

  • October 30, 2018
  • By Petra Warrington, Senior Associate

Merited or not, the most talked-about work in Sotheby’s recent contemporary art sales was Banksy’s artwork then known as Girl with a Balloon. The work was the final lot in Sotheby’s contemporary art evening sale and the hammer went down at the record-breaking price of £860,000 or £1.04 million with fees. Seconds later, an alarm was triggered and the work began to slip down its frame into a shredder concealed in the bottom of the frame. The shredding stopped part-way, presumably unintentionally, leaving the red heart-shaped balloon intact and the remains of the girl hanging in strips below the frame. Theories have abounded about whether Banksy’s stunt was pre-arranged and what involvement Sotheby’s may have had. Sotheby’s have denied any prior knowledge of or participation in the escapade, claiming to have been “Banksy-ed”.

Banksy’s street works, as with any street art, occupy a murky area at the intersection of creative expression and vandalism, property and criminal law, although few will complain about having a Banksy work on their walls. Sales of works produced by Banksy for private sale and by auction are, of course, in a different category and represent a foray into the mainstream art world. Following the original stencilled image of the girl with a balloon which appeared on London’s South Bank in 2004, Banksy has reproduced the image in numerous print editions and numbered paintings as well as spray paintings, such as that sold at Sotheby’s. One might assume that in producing works for private consumption, Banksy’s commercial interests have eclipsed his artistic mission. But then he pulls a stunt like that at Sotheby’s which causes a media frenzy and renewed interest in the message behind his work. There is an uneasy balance between Banksy’s production of works for private sale on the one hand, and his criticism of consumerism on the other. From a legal perspective, Banksy’s escapade throws up a number of interesting questions.

It has been reported in the press that, following negotiations with Sotheby’s and presumably the vendor of the work, who may or may not have been Banksy’s handling service, Pest Control, or Banksy himself, the buyer of Girl with a Balloon proclaimed that she had purchased her “own piece of art history” and was planning to keep the newly transformed work. Everyone, it seems, went home happy and the art market applauded. Pest Control lost no time in re-titling the work Love is in the Bin and issuing an authenticity certificate. Clearly, in trying to ridicule the art market on this occasion, Banksy may have underestimated its ingenuity and commercial nous, which quickly turned an aborted stunt into a more valuable commodity, with commentators saying that the work had certainly increased in value.

Reaching a commercial settlement in a case like this is obviously the right way to deal with what would have otherwise been a fairly complex legal dispute. Sotheby’s conditions state that the contract between the buyer and the seller of a work at auction is “concluded on the striking of the auctioneer’s hammer, whereupon the Buyer becomes liable to pay the Purchase Price”, subject to the auctioneer’s discretion to withdraw a lot even after the fall of the hammer. On this occasion, the auctioneer did not declare the work to be withdrawn, despite the shredding commencing immediately after the hammer fell. Moments later, the work was substantially altered. Although on Sotheby’s conditions the contract had been concluded, neither party had performed its obligations. The purchaser had not made payment and title and right to possession had not passed.

What then would the buyer’s remedies be if she did not want to keep the work? This is of course an academic point now as, because of the artist’s intervention, its value has probably risen; but, had the damage been caused by someone else, it likely would have fallen. Unsurprisingly, Sotheby’s terms do not anticipate such a scenario.

If the buyer no longer wished to honour the contract and acquire the work once it had been damaged, the buyer would seek rescission of the contract and, if not possible, claim damages. Neither claim is likely to be straightforward. While it is rumoured that the artist may have been the seller, the catalogue entry says that the seller acquired the work directly from the artist in 2006. The shredding was clearly executed by Banksy or on his instructions. There is no evidence to suggest that the seller (assuming that this was not Banksy) had a part in it, so there does not, on the face of it, appear to be a breach of contract between the buyer and the seller at auction. The buyer might instead claim that the contract had been frustrated by an unforeseen event not due to the fault of either party. Could the buyer also bring a claim for misrepresentation against the seller and/or auction house based on the information in the catalogue – whether in relation to the seller’s identity or the description of the work? The cataloguing referred to the “artist’s frame”; however, should it not have been properly described as a frame concealing a shredding device?

There are also legal and commercial points about passing of risk and insurance coverage to consider. The work would be covered by Sotheby’s insurance policy immediately after the sale until the buyer put her own insurance in place and Sotheby’s would, in principle, assume liability for loss or damage. In these circumstances, would intentional damage inflicted by the artist on his own work invalidate a claim under Sotheby’s insurance policy?

However unlikely, the buyer might also consider bringing a claim for conversion against Banksy for wrongful interference with the buyer’s goods. Artists have certain moral rights but they do not extend to a right to destroy artworks which they no longer own. Of course, in circumstances where the artist’s interference has increased the work’s value, a claim would hardly get off the ground.

There are a number of potential legal ramifications of Banky’s prank, or certainly would have been, had the work not self-destructed into something apparently even more compelling. Fortunately for those concerned, and perhaps despite the artist’s best efforts, Love is in the Bin has become a contemporary icon as well as a delightful legal conundrum.

Petra Warrington, Senior Associate

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