Monday, 2 December 2013

Possible infringement of Banksy's moral rights?

Banksy mania continues. 

After Banksy's works invaded New York with "Better Out than In" series, as we reported here,  Art Basel Miami will offer two of these Banksy's works for sale. 

The two pieces which will go on sale during the fair, from tomorrow till December 8, are: a rear door of a Manhattan car where the British street artist painted an Herculean figure surrounded by running horses, and a 680 kilograms chunk of a Brooklyn warehouse wall on which he painted on October 7 an heart-shaped balloon covered in bandages, informally known as the  "Red Hook Balloon".


Red Hook Balloon, Banksy, 2013, New York
The current owner of the works is Stephan Keszler, the New York Gallery owner who had  already controversially acquired a pair of Banksy works removed from a wall in Bethlehem in 2011.   In that occasion, Banksy’s authentication team, known as Pest control, admonished the gallerist, so that he cancelled a planned exhibition of the works at Art Basel Miami, but the walls were put on display the next year.

Keszler told that he purchased the Red Hook Balloon from the owner of the building on which it was painted and the car door from the car owner. The Red Hook Baloon was tagged by another graffiti artist before its removal, but its value is estimated up to 800,000 USD.

As already happened in 5 Pointz, the removal and, this time, the sale of street art works which had been created by Banksy to be public art poses importante questions concerning artist's moral right.In particular, art. 6 bis of the Berne Convention for the protection of literary and artistic works and, consequently, many national legislations provide artists with moral right of integrity. Such right provides that independently of the author's economic rights, and even after the transfer of the said rights, the author shall have besides the right to claim authorship of the work, the right to "object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation".

In light of the above, we may wonder if the removal and the sale of the Banksy's works could infringe the right of the integrity belonging to the British street artist, who might want to mantain public his artworks, without losing their " street " attitude. Certainly, the right of integrity will collide with the right of the owner of removing the illicit works.

Who will win?






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