You can’t leave it for sale: who is the owner of the Banksy murals in Ukraine, and how much they can cost

Artist Banksy acknowledged the authorship of 7 murals in Ukraine - in Kyiv and the metropolitan area. The preliminary estimated cost of Banksy's murals in the Kyiv region can reach more than $1 million. And if his works are sold, for example, at Sotheby's in London or New York to raise money for charity, the amount could reach $10 million. But is it possible sell and who owns them? Special for publication MC.Today Piotr Bilyk, Head of Technology and Investment Practice at Juscutum, explained all possible options.

Photo: IStock

The issue of ownership of the works of art artists is very ambiguous, because they are created in violation of the law, without a specific designation of ownership.

For example, the famous brand Guess used the work of the artist Flower Thrower without permission to decorate the store, for which Banksy called for the use of the Guess trademark also without permission. And this is not the first dispute between famous brands and street artists. Who owns the work of Banksy, and is it legal to use them for commercial purposes?

Option 1. The owner of the murals is the street artist himself

Banksy is the artist's pseudonym. Art works in the Kyiv region are not signed by the author, but it can be assumed that Banksy acknowledged authorship when he posted graffiti on the official Instagram page.

Also, Banksy published a video of how the work was created, thus confirming once again that this is his handiwork. The fact that works are made by an artist under a pseudonym does not in any way deprive the creator of copyrights to them, because the creation of works under a pseudonym is provided for by Art. 11 of the Law of Ukraine "On Copyright and Related Rights".

Therefore, according to the law, Banksy's murals are subject to copyright for 70 years from the date of their creation. Mural copyrights should not be registered with the Office. Only the artist or a person authorized by him can exercise these rights.

Thus, Banksy can demand payment for the use of the work, decide how to use it, and also prohibit the use.

By default, only the author can dispose of the works, including selling them. However, Banksy is an anonymous artist and is represented by the Pest Control Office. She has registered trademarks for a number of his works.

It seems logical: the artist created the work, he owns the copyright. However, these works were created on someone else's property and without permission, the author has in no way determined how to use these works. Therefore, the question arises, does the owner of the property on which the work is created have any rights?

Option number 2. The murals belong to the owner of the house

In addition to the copyright for the work, in this case, one should not forget about the ownership of the property itself, on which the mural was created.

And this is where the conflict between different types of rights turns out: the right of ownership of a real estate object, the right of intellectual property and which right has priority in this case.

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On the one hand, the owner of the building can dispose of it as he pleases, and the artist has no right to violate these rights. On the other hand, the owner of the house, on the wall of which the original work of fine art is embodied, is not allowed to destroy this object without first offering the author of the work a price not exceeding the cost of the materials used to create it.

But in this case, the murals can be classified as a gift to the owner of the building, since the artist did not receive prior consent. Therefore, unless the owner of the building immediately refuses to accept such a gift, the gift is accepted and ownership passes to the owner of the building.

Option number 3. The owner is still Banksy, because all the buildings have already been destroyed

The cost of a ruined house without murals by Banksy or another street artist is zero. But when an art object appears even on a destroyed wall, then in this case the value and cost of a piece of a destroyed house can reach millions of dollars.

According to the Civil Code of Ukraine (Article 349), the right of ownership is terminated upon destruction of property. Thus, it turns out that the owners of the destroyed multi-storey building, from which only one wall remained, where Banksy's works were made, do not have the right to them.

After the creation of the mural, the wall became an object of art. And if the cost of the created art object significantly exceeds the cost of the wall, it is the artist who receives the ownership of the mural. At the same time, the author undertakes to compensate the owner of the wall for moral damage.

Option number 4. The owner is the administration, because the mural is nobody's

No one knows who is hiding behind the pseudonym Banksy. In addition, it is impossible to establish whether the artist authorized someone to represent his interests in these particular works. Banksy only published photos and videos on the social network and in no way limited how further the work could be used.

In this case, we can assume that these Banksy works are an ownerless thing, the real owner of which is unknown. In Ukrainian legislation, these works can be transferred to communal ownership by a court decision (Article 335 of the Civil Code of Ukraine).

Option number 5. Is it possible to use the works of Banksy when creating merchandise

Commercial use of Banksy's work is prohibited, said a representative of the artist from the Pest Control Office.

In order to protect the rights of Banksy, several trademarks were registered for his most popular works, but none of them extends to the territory of Ukraine. In order to protect, among other things, an online store with merchandise based on Banksy's work was launched.

But disputes over the use of the works of the art artist do not subside. One of the most famous is between Pest Control Office and Full Color Black for a number of works used for commercial purposes.

In May 2021, the European regulator (EUIPO) ruled that Banksy's trademark registration "was not intended for their use" and invalidated the trademark registration.

The EUIPO said that Banksy cannot be identified as the "clear owner" of the murals, as the artist remains completely anonymous and does not wish to reveal his identity.

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Not the last role was played by the statements of Banksy himself in his book Wall and Piece, where the artist stated that copyright is for losers, suggesting that everything that is depicted in public can be freely used by everyone and without permission.

However, a new round in this case occurred just a couple of days ago, when the EUIPO appeal panel reversed its own decision of 2021, noting that dishonest behavior on the part of Pest Control during the registration of the trademark was not sufficiently proven, which means that the trademark is still valid.

Thus, from the very beginning, EUIPO allowed everyone to use trademarks, and with a new decision, it sided with the artist.

Therefore, all brands that are not afraid to use Banksy's work violate the rights of the artist and his representative Pest Control. Another thing is that in order to protect copyright on works for which a trademark is not registered, Banksy will have to disclose his real name, which he does not plan to do yet.

So only the courts can determine the correct position or the author of the work himself. But the administration can get permission from the artist. For example, this was the case in the Mobile Lovers case, where Banksy handed over the work to the Boys' Club Stinchcombe.

Therefore, it is best to contact the artist's Pest Control Office directly and ask for permission to sell his work for charity or transfer it to a museum.

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