Banksy puts his work out on the street. So what happens when someone restricts access to it, for a fee? This post explores the separate questions of ownership surrounding this story: ownership of copyrights, ownership of copies, and “ownership” of neighborhoods.
A story has been circulating about a group of men in East New York who were charging people $20 to view an image of a beaver that street artist Banksy has stenciled onto a wall there. In any case, it’s generated a series of questions about various parties’ rights.
So let’s get some of the legal questions out of the way. Some people in the comments to the linked Gawker story seem to think that what these self-appointed gatekeepers are doing is deplorable, since they don’t have any copyright in the work. The thing is, though, their (lack of) ownership of any copyright is irrelevant to their actions. Museums, by and large, don’t own the copyrights in the works they exhibit, yet nothing prevents them from charging a fee to those who want to see them.
Physical Objects vs. Copyrighted Works
The reason this can happen is because there is a big difference between owning the copyrights in a work and owning the particular physical object that contains the work. In the case of something like a novel, this means that my local bookstore, owning absolutely no copyrights in any of the books they sell, can charge me whatever it sees fit for me to walk off with a copy of a copyrighted book. The author of the book can prevent me, or them, from making copies of the book, but not from controlling access to the physical work however I like.
In the visual arts, this distinction has different consequences, since a lot of the time, there’s only one (original) copy of the work. Still, the distinction is there. If the museum owns the piece (say, the physical canvas and paints upon it), it can grant or restrict physical access to it, regardless of the artist’s rights in the creative expression embodied in that physical object. If an artist didn’t want anybody to view a painting she had made, the most she can do is try to convince the buyer not to exhibit it—or not have sold it in the first place. Her copyrights can prevent the museum from slapping a copy of the painting on tote bags or selling prints of it in the gift shop without her permission, but her control over that physical object is over once it leaves her possession.
Street Art: Copyright Ownership, Physical Ownership, and Cultural Ownership?
So this brings us to the question of the ownership of the physical copy, since we’re taking for granted that the copyright in the work is Banksy’s. I’m assuming that there’s no agreement between Banksy and the owner of the wall he stenciled. If that’s the case, then I would think that the owner of the wall owns this particular copy. Banksy certainly can’t claim to own something just by spraypainting a stencil on it; if that were the case, we’d see a lot more graffiti created by real estate developers. Doodling on a wall doesn’t change who owns it, so whoever owns that building owns the beaver that’s painted on it.
The men charging admission, as far as I can tell, didn’t own the wall, and so don’t have any real claim to the physical copy. So they don’t have any affirmative rights to the copy of the work, and it’s up to state and local laws to determine if what they’re doing (blocking off a piece of wall and charging people to see it) is actually illegal. This actually seems somewhat unlikely.
But that’s taking a fairly narrow, legalistic view of things. When we talk about artwork, neighborhoods, and ownership, there’s a big set of norms and emotional instincts that get involved, and these issues, even if they don’t have relevance to copyright, or even property law, have a real and necessary place in how we think about street art.
Banksy spraying a stencil onto a wall in a neighborhood has many practical consequences that go beyond immediate questions of legal property ownership or municipal anti-graffiti ordinances.
To go into this some more, let’s look at the account of one woman who wrote in about the scene to Gothamist:
They have been guarding it for a while drinking heavily, so who knows. They are pretty angry about how many white people are coming here. Side note, I have some cred here because I work close to that spot. The general feeling is that nobody cares about this neighborhood and now that they have something of value they should benefit. Omar's name came up several times and they are not going to allow anyone to deface it. They didn't charge me because one guy has seen me around. They reported that several yellow cabs have pulled up with people wanting to get a look. They are firm about the $20 fee and tried to warn me when I left about the crews from the area projects robbing people who look like they don't belong. They wouldn't let me take a picture, but were happy to let me take a nice long look while blocking some others who had not paid.
There’s a lot to pull out of this, But I think that, since we’ve looked at the questions of who owns the work (Banksy) and who owns the physical copy of the work (likely whoever owns the wall), we can look at the conflict between those who live and work in the neighborhood and those who visit it.
First, Banksy’s works exist in a particular cultural context. Despite being “street art,” they’re feted in fancy galleries and the subject of clever documentaries. This stands in contrast to East New York, where half the population lives below the poverty line. So what does it mean when Banksy decides to claim a part of New York as his canvas?
There’s a transgression there—doing something without asking permission—which can alternately be seen as rebellious or arrogant, or both, depending upon how you view the relationship between the artist/vandal and the neighborhood he’s beautifying/defacing.
So it’s understandable that some people in East New York might resent being treated like someone else’s canvas. This sentiment seems to be what underlies a lot of the support expressed online for what the men in the video are doing.
That makes a certain set of assumptions too, though. Are these particular people representative of the neighborhood? If the issue is one of community autonomy—a neighborhood being able to decide for itself what it wants on its walls and how it wants to be used by outsiders—then who represents that community? Others in the neighborhood might welcome the attention, or the cabloads of Banksy fans. How do they have a say in how this unasked-for gift gets used? In the end, I don’t think anyone should be upset at these gatekeepers for appropriating Banksy’s work for themselves, because he’s already put his work out there, without permission or restriction, on someone else’s property and in someone else’s home. Instead, people could be upset at the gatekeepers for appropriating that corner for themselves.