There are some cases in which Authors’ Rights and Trademark Law intersect in an inextricable Gordian Knot, difficult to cut, and these are the cases that fascinate even those who, like us at the Canella Camaiora Law Firm, make intellectual property their flagship.
The “Flower Thrower” by the famous street artist Banksy is one of these fascinating cases.
Banksy, pseudonym and anonymity
Banksy’s great fame is undoubtedly due in part to the aura of mystery resulting from his ability to keep both his real name and identity unknown. Given his extensive media exposure, this ability almost seems surreal.
Based on where his earliest works appeared, it is known with reasonable certainty that he might be from Bristol. A study conducted by the Mail on Sunday in 2008 suggested that the artist might actually be Robin Gunningham, a former student of Bristol Cathedral Choir School. Others, also based on an alleged reference made by the British musician Goldie during an interview, point to Banksy’s alter ego as Robert Del Naja (also known as 3D, Massive Attack leader and writer). Some suggest that it could be a woman or several artists working under the same signature.
For our purposes, however, what is of interest is that Banksy – although he signs and marks his works with a stage name – from a technical legal point of view operates in a regime of anonymity.
Pseudonymity and Anonymity in Copyright Law
The behaviour of the British street artist is completely lawful.
Italian Copyright Law, for example, states in Article 8 that: “Shall be deemed to be the author of the work, unless proven otherwise, whoever is designated as such in the forms of use, or is announced as such in the performance, execution, representation or broadcasting of the work.
The pseudonym, stage name, acronym or conventional sign, which are known to be equivalent to the real name, shall count as a name“.
On the other hand, Article 21 (first paragraph) of the same Law, also states that: “The author of an anonymous or pseudonymous work shall always have the right to reveal himself and to have his status as author recognised in court“.
Banksy’s pseudonym is a pseudonym, but it is correct to say that the artist operates anonymously because his name and identity are kept unknown.
The traceability of Banksy’s works and authorship
Banksy usually signs his street works in a way that we can easily include in the customary forms (tagging them, posting pictures on his website, etc.), which is why – even if we do not know who is behind the pseudonym – it is quite possible to trace the authorship of the works back to him.
The same can be said of the famous “Flower Thrower” (also known as “Love Is In The Air”), which appeared for the first time in 2005, in Palestine, which we can see in the picture below by Josh Levinger (CC BY-NC-SA 2.0).
The Flower Thrower is one of Banksy’s most emblematic artwork, showing a Palestinian man with his face half-covered throwing a bunch of flowers. The artist documented the creation of the work in his book “Wall & Piece”, published by Century at the end of 2005.
Copyright, intellectual property rights and trademarks according to Banksy
The famous street artist has always documented his creations in some form, while declaring his aversion to capitalism and “traditional” copyright, to the point of stating: “Copyright is for losers ©™“.
Or again, talking about advertising in general: “Trademarks, intellectual property rights and copyright law mean advertisers can say what they like wherever they like with total impunity. Fuck that. Any advert in a public space that gives you no choice whether you see it or not is yours. It’s yours to take, re-arrange and re-use. You can do whatever you like with it. Asking for permission is like asking to keep a rock someone just threw at your head.“
The British artist, despite these declarations, obviously knows his way around the world and is well aware of the relevant legislation, so much so that, whilst remaining anonymous and operating through trustees, he has been using trademark registrations for some years now to protect his artistic name and authorship.
The principle underlying trademark registrations is very clear: to allow third parties ( trustees) to deposit and even take legal action to protect distinctive signs whose graphic representation matches the artist’s best known (and commercially appealing) works, thus indirectly enabling the artist to defend his authorship, without taking legal action by asserting his/her copyright ( and potentially dissolving the mysterious halo that conceals his/her identity).
Thus, Pest Control Office Limited has filed various trademarks, such as the figurative one below
filed on 07/11/2018 and registered as a European Union Trademark on 08/06/2019, brought, rather unsuccessfully, by Banksy’s trustee in a case against MUDEC, which we have already discussed in a previous article.
The Flower Thrower
One of the trademarks registered by the Pest Control Office Limited is community trademark number 012575155, which is a reproduction of the well-known Flower Thrower that appeared in Palestine in 2005.
Filed on 07/02/2014, it was registered on 29/08/2014, although it would not be used as a distinctive sign until at least March 2019.
On 12/03/2019, Full Color Black Limited (a United Kingdom-based company that sells cards and postcards with a street art theme, often using artworks by Banksy) filed an application with the EUIPO for cancellation of this trademark, claiming – in addition to other matters – that it had been filed in bad faith (for reasons unknown to the writer of this article, no request was made for revocation for non-use for five years, although I believe this would have been the best course of action).
The Cancellation Division of the EUIPO, after remarking that the actual use of the mark by the registrant had only begun after the filing of the application for cancellation, declared the invalidity of the sign on the basis of Article 59 (1) (b) of the Community Trademark Regulation: “1. On application to the Office or on the basis of a counterclaim in an action for infringement, the EU trademark shall be declared invalid if: […] (b) at the time of filing the trade mark application, the applicant acted in bad faith.“
The Board of Judges, after pointing out that the concept of bad faith as per article 59, paragraph 1, letter b) “is not defined, delimited or even described by the legislation” (pg. 11, Decision on Cancellation No. 33843 C), sees the bad faith of Pest Control Office Limited (and consequently Banksy) precisely in that merely protective purpose of Copyright which we have discussed in the previous paragraph.
The following passage is emblematic: “The predicament of Banksy’s right to the work ‘Flower Thrower’ is clear. To protect the right under copyright law would require him to lose his anonymity which would undermine his persona. […] It is clear that when the proprietor filed the EUTM he did not have any intention of using the sign to commercialise goods or provide services.” (p. 12, Decision on Cancellation No. 33843 C).
Once the trademark is lost, the copyright on the work is lost too?
The sentence we are currently analysing, dated September 14, can still be appealed, but let’s assume that the decision will be final: having lost the corresponding trademark (registered through trustees), would Banksy really have lost also his Copyright on the work?
Of course not: one could not use someone else’s work protected under the Copyright Law without authorization (as Full Color Black Limited is doing).
The Gordian knot, however, is right here: in order to claim his authorship of the “Flower Thrower” in court and prevent its use by unauthorized third parties, Banksy would have to uncover himself and lose the anonymity he so strenuously defends; and, even if he decided to let the trustees, who only own the rights of economic exploitation of the work, act, they would end up exposing Banksy to dangerous leaks.
On balance, one of the greatest contemporary artists is likely to see some of his most iconic works freely exploited by anyone, but we are willing to bet that the dispute is not over and we will continue to update and comment.
