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Banksy’s Self-Destructing “Love Is In the Bin” – A Good Reminder of the Moral Rights of Authors

Mar 04 Posted By Max Rothschild | 0 comment

Max Rothschild is an intellectual property (IP) lawyer specializing in copyright and digital media, with a background in music law. He assists with copyright matters including registration, licensing, enforcement, and clearances.

Meet Max, along with other professionals from Bereskin & Parr, Quantius and IICIE, on April 2, 2019 at "Start (Me) Up" to learn about "Best Practice for Growth, Funding and IP Protection for Digital Startups". Register now at EventBrite to secure your spot!

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Infamous satirical artist Banksy made waves this past fall by setting up a work to “self-destruct” immediately after being sold for over £1.04 million (approx. $1.56 million CAD). The artistic stunt is a good reminder of the moral rights of artists in their works, an important aspect of copyright law that all small businesses should be aware of for dealing with works created by employees and contractors. No matter the relationship with an artist, all businesses should make sure to secure a waiver of moral rights in works the business intends to use.

Banksy’s spray-painted canvas piece “Girl With Balloon” was sold at auction at Sotheby’s in London in early October 2018, in a custom frame provided by the artist. As it turned out, the frame concealed a shredder, and immediately after being purchased, the canvas descended into the lower portion of the frame only to emerge in strips out the bottom of the frame. Banksy then posted the above image of the destruction with the caption “Going, going, gone…”, and followed up with a video on Instagram explaining how he hid a shredder in the frame available.

The stunt is extremely ‘on-brand’ for the notorious vandal-artist, and appears to have delighted the very art critics and connoisseurs being lampooned. “We’ve just been Banksy’d” said Alex Branczik, senior director at Sotheby’s, who went on to describe the piece as “the first artwork in history to have been created live during an auction.” The buyer likewise stated that at first they were “shocked, but gradually I began to realise that I would end up with my own piece of art history.”

The prank is also a reminder of artists’ rights in their works beyond the sale of the physical object. Under copyright law, the authors of works are entitled to certain inalienable and non-transferable moral rights that dictate how their works may be used. For example, Canada’s Copyright Act provides that authors hold the right to have their works be attributed to them (or not) where reasonable, and also the right to the integrity of their work. These rights do not transfer when a work of art is sold, or even when copyright in a work is transferred or assigned, and instead remain permanently with the author of the work.

The author’s right to the integrity of their work is infringed if their honour or reputation is prejudiced by any (i) modification, mutilation, or distortion of their work, or (ii) use of the work in association with a product, service, institution or cause with which the author does not wish to be associated. So, for example, it may be an infringement of moral rights to vandalize an original artwork, or to present it in association with a message that is contrary to the views of the artist. However, it is important to keep in mind that prejudice to an author’s honour or reputation is assessed by Canadian courts both subjective and objectively. This means that it is not enough for the author to feel their honour or reputation has been injured, members of the public (such as other artists) must also agree with the author. Canada’s Copyright Act further specifies that certain acts do not alone infringe the author’s right to the integrity of their work, such as merely changing the location of a work or taking steps in good faith to restore or preserve a work.

In Banksy’s case, the artist most likely did not have the right to destroy their own work, since the piece had just been sold at auction to a new owner. Assuming that art collector had property rights in the physical work of art, even Banksy did not have the right to destroy it after it had been legitimately purchased, but then only he could get away with it and be seen as creating a new work in the process. Conversely, the new owner with property rights in the work would not have been able to destroy the work without infringing Banksy’s continued moral rights in the piece.

As noted above, unlike copyright in a work (or ownership of the physical object), moral rights in a work may not be transferred or assigned, they always belong to the author. However, an author can waive their moral rights in favour of someone else, such as the copyright owner or a licensed user of the work. This aspect of moral rights makes them an important factor to keep in mind for any transfers of copyright, and should be addressed in any licensing or assignment agreements with the author of a copyright protected work. It is also worth keeping in mind that moral rights subsist for the entire term of copyright in a work, and pass to the estate of an author upon death, so these rights may even need to be addressed posthumously.

Moral rights should always be considered when a business is dealing with an original work of art, by an artist or even an employee or contractor. Although a business may have a licence to use the work, or may have purchased it, or may even own the copyright in the work, it must nevertheless still consider the author’s moral rights in the work. Without an express waiver from the author, the business may not be free to use without limitation, or to change or destroy the work. With this in mind, it is worth ensuring that (1) employee agreements include an express waiver of moral rights in any works prepared for the business, and (2) businesses should always secure a moral rights waiver in written copyright assignments from contractors preparing works for the business. This includes any copyright protected works, such as text written for the business or a graphic design (such as a corporate logo).

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A version of this article was originally published on the Bereskin & Parr website on October 16, 2018.


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