Over the course of last week, I have been speaking to the press quite a bit – the BBC, Sky and the FT.
It is not unusual for the press to get in touch to ask for my view on the most recent intellectual property headlines.
As an aside, it is quite a testament to IP that it is in the news so often, whether it’s Ed Sheeran, Colin the Caterpillar or Aldi’s latest inspired product.
There is just something about IP stories that capture the public’s imagination and command attention.
That being what it may, I was contacted to comment on the latest Banksy IP flashpoint – concerning the alleged unauthorised use of his graffiti works in a collaboration between a company called Brandalised and high-street fashion retailer, Guess.
So, before we get into the technical bits, let’s start by looking at the lay of the land.
Guess, the high-street fashion retailer announced a collaboration with Brandalised – with Banksy designs at the forefront of the offering.
Brandalised appeared to have a pre-existing relationship with Banksy – as they have a range of different Banksy products on their website for sale.
(Brandalised website copy states: “For the last thirteen years we have been systematically securing the rights to The World's Most Famous Graffiti in support of a global fan culture. We know that 99.99% of the world cannot afford the astronomical prices of prestigious Auction Houses. To solve this, Brandalised™ partner with the world's finest brands and manufacturers to give you, the fans, your own affordable graffiti collectibles.”
Upon seeing the collaboration, Banksy publicly complained, stating: “Attention all shoplifters. Please go to GUESS on Regent Street. They’ve helped themselves to my artwork without asking, how can it be wrong for you to do the same to their clothes?”
This seemingly contradicts Brandalised’s statement, or at least gives rise to questions as it relates to the extent to which the rights they purport to have cover producing a collaboration with Guess…
Your Guess is as good as mine!
Let's dig a little deeper.
The initial “read”
My initial view on this was that it might be a bit of a guerrilla marketing campaign – as it is very unlikely that Banksy would ever want to be commercially involved with such a large organisation.
If you think about it that way, it makes sense to make a bit of noise about it, but also distance yourself from the large commercial entity as an artist.
But it seems that the reality of the situation is a bit more complicated.
Upon “second read”, one might imagine that Banksy had licensed the artwork to Brandalised in a limited way and that Brandalised had then cross-licensed with Guess in breach of the original agreement.
Ultimately, this would be an “egg on the face” moment for Brandalised, who would have undermined a very lucrative arrangement with the street artist – possibly resulting in a cancellation of the agreement.
Not great, but it seems that the reality is even messier…
The key here is to investigate the background of Brandalised, a company that appears to have an established reputation for the use of street art in their designs – potentially with varying degrees of permission and remuneration.
Crucially, Banksy has found themselves stuck in relation to enforcing their copyright, as there is a requirement to assert one’s identity in proving ownership.
Instead, he/she has sought to protect their creative works via the registration of trade marks which (considering copyright is an automatic right) is an onerous path to take.
If Banksy was not anonymous, he/she would be able to easily assert their authorship and ownership of their artwork – in essence stopping anyone from using them – or even works that are overly similar.
Clearly, remaining enigmatic is more artistically or philosophically more important, and as a result – enforcement via copyright is not a route that is available for them…
As a result, some producers have called Banksy’s bluff, and as IP Watchdog state here, Banksy: “witnessed a surge in the commercial usage of his work in galleries, auction houses and on merchandise like t-shirts, mugs, bags, and stationery, he seemingly has come to terms with the fact that to maintain the accessibility of his work for all, he must knock on the doors of IP offices globally.”
One might surmise that the non-negotiable and ongoing enigma of Banksy’s identity is a key element of their lasting appeal (and the market for the works). Many other graffiti artists have become known, as they seek to protect their iconic designs (e.g., Shepard Fairey who, having gone viral with their OBEY giant, went on to do the HOPE campaign posters for the Obama election campaign...)
Whilst the company Pest Control manages Banksy’s IP – to be able to enforce copyright, evidence of ownership would have to be transferred in an official capacity from Banksy as an individual to the company - again revealing their identity.
Ultimately, this has been an issue for Banksy for some time and unless they are willing to either:
Register all of their key works as trade marks (where possible) and enforce via trade mark infringement, or;
Assert ownership over the works in such a way as to be able to enforce copyright
… they will continue to have to enforce their ownership of designs in the court of public opinion - which when considered against a Banksy branded “bargain” may fall on more deaf ears than they perhaps would want.
So, what’s the moral of the story? It is genuinely quite hard to say!
Banksy’s anonymity remains a constant source of intrigue and is philosophically the centre of their art – but at the same time, they find themselves in a unique struggle to control how their work is used in the commercial space.
Whether or not commercial actors are interested in heeding those protests is up to them (and as we know, money talks when it comes to commercial matters!)
Whether or not Banksy or his intermediaries have a relationship with Brandalised (seems unlikely) what we can be sure of is that getting to grips with IP is an ongoing concern for Banksy – both in this instance and moving forward.
Every business has a unique relationship with its IP and must take whatever steps it can to keep it under wraps.
Banksy finds themselves uniquely handcuffed in doing so, but this trade-off is arguably what separates them from their peers both in the gallery and in the hearts and minds of the public.
If you have great ideas and outputs you want to protect, do not hesitate to get in touch – we’d be more than happy to make sure that you don’t find yourself stuck like Banksy!