Examining the question of ownership of graffiti and street art

Slave Labour, the Banksy mural at the centre of a controversial auction has been withdrawn from sale at the last minute from Fine Art Auctions Miami (FAAM). The work, which shows a young boy hunched over a sewing machine making Union Jack bunting (see above), appeared on a Poundland store wall in Wood Green, north London, last May, just prior to the Diamond Jubilee celebrations. However, the piece disappeared from the side of the Poundland store last weekend and was due to be auctioned in Miami last night, where it was expected to sell for up to £450,000.

Haringey Council, has campaigned for the artwork’s return to the UK since it emerged that the piece was up for sale, appealing to Mayor of Miami Tomas Regalado and even calling on the Arts Council and Culture Secretary Maria Miller to intervene on their behalf.

The removal of the art work raises interesting legal questions. The debate as to whether or not graffiti or street art can really be considered art is clearly subjective and open to interpretation but creating such pieces can be considered a criminal offence. So if an offence has been committed is there any legal redress when the art is destroyed or removed? Has a crime has been permitted in removing Slave Labour from the wall in the first place? And, perhaps more importantly, who retains ownership or the art or graffiti?

The laws on creating graffiti or street art on public property are very strict. Anyone caught in the commission of unauthorised or illegal graffiti can be arrested and prosecuted under the Criminal Damage Act 1971. Those found guilty of an offence under the Act can go to prison for up to ten years or fined if the damage costs more than £5,000. If the damage caused is less than £5,000, an offender could face up to three months imprisonment or a £2,500 fine.

The Anti-Social Behaviour Act 2003 introduced new powers for local councils to punish offenders and to help them clear up illegal graffiti. These include:

  • On-the-spot fines of £50 to anyone caught doing graffiti on public property. These can be given out by police officers, community support officers or local authority officials;
  • Giving local authorities the power to give clean-up notices to owners of street furniture such as phone boxes if they have graffiti on them. If the property is not cleaned in 28 days the authority can remove the graffiti themselves and charge the owner for this service;
  • Making it an offence to sell spray paint to under-16s. If a shopkeeper can’t prove they took reasonable steps to determine the age of the person, they can be fined up to £2,500.

The laws on private property are somewhat different from the above. Unauthorised or illegal graffiti on private property is still an offence as above. However, the law on graffiti removal from private property is determined by location rather than a nationwide solution. Individual councils can determine their approach to graffiti removal from private property and may well charge for the  service and they will not remove the graffiti without the consent from the owner of the property. The onus is on the owner to contact the council and arrange for its removal or to do it themselves.

So what of the building in question where Slave Labour made its home? Well the property where the Poundland store operates is not public property. It is in fact privately owned by property firm Wood Green Investments. News had emerged after the removal of the art that the owner of the building had ordered the extraction in order to “preserve” the work before obviously turning up in a Miami auction house.

As Frederick Thut, of the Miami auction house says in an interview with the BBC: “the work was painted on a private wall and the owner of a private wall can do whatever he wants with his own wall.”

A solicitor for property firm Wood Green Investments, told the Financial Times: “If they deny removing the mural they will become embroiled in an international criminal investigation that has already involved the FBI, but if they admit to consenting to (its removal) then they will become the target of abuse. As a consequence, the advice to my client has been to say nothing.”

I will leave you to make up your own mind as to whether or not the solicitor in question has managed to say a lot without actually saying anything, or has said nothing that actually says a lot. Furthermore, a Scotland Yard spokesman said: “There have been no reports of any theft. It appears there has been a decision by someone to remove it for sale – there is no suggestion of any crime being committed. We have been in touch with the US authorities about the ownership of it and advised them that there has not been a theft.”

This perhaps gives more credence to the words of the FAAM auction house spokesman who said upon the removal of the items from sale: “Although there are no legal issues whatsoever regarding the sale of lots six and seven by Banksy, FAAM convinced its consignors to withdraw these lots from the auction and take back the power of authority of these works.”

As this editorial in last weeks FT suggests, intellectual rights lawyers are no doubt racing to their tomes to try to decipher whether or not an artist retains any rights to his work if it is produced on public or private property without the consent of the owner of that property. Last year the proposed sale of Henry Moore’s Draped Seated Woman (affectionately known as ‘Old Flo’) by Tower Hamlets Council provoked public outrage amidst fears about the future of public art in the collections of local councils. As the council faced the challenge over its claims to own and sell the statue, the dispute over legal ownership of the artwork proves pivotal to the sale.

Draped Seated Woman by Henry Moore

Draped Seated Woman by Henry Moore

There is a somewhat convoluted historical trail to the ownership of the piece that can be seen in this article from The Spectator. The result of which has opened up Tower Hamlets to a legal challenge from the Art Fund, whose lawyers are arguing that the work might well belong to Bromley Council on the basis that the order transferring the Stifford Estate to Tower Hamlets does not specifically mention sculpture. Tower Hamlets is obviously contesting this.

Banksy himself has made no statement concerning the proposed auction sale of his work, but in response to a question on his official website he does quote Henri Matisse who said: ‘I was very embarrassed when my canvases began to fetch high prices, I saw myself condemned to a future of painting nothing but masterpieces.’

Haringey Council believes that Slave Labour was a gift from Banksy to the community and that it should return to that community. While the cases of Slave Labour and Draped Seated Woman are different in some ways, they do raise very interesting questions as to the ownership of art by communities, public authorities and private individuals or companies. It may well take a high profile court case to decide these issues once and for all. As the artist William Morris once wrote, “I do not want art for a few, any more than education for a few, or freedom for a few.”

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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