If an artist's message revolves around anti-commercialist values, is it hypocritical for them to employ copyright law to protect their own work? A swirl of questions like this surrounds a recent copyright infringement case involving Banksy and Guess. The mysterious, anonymous artist has been fighting the fashion giant to stop using his work on their clothing without his permission.
Guess Claims They Had "Legal Rights" to Use Banksy's Work
The fashion retailer does not believe they have infringed on Banksy's work. However, their argument seems to be trying to cover their bases, even when the bases mean different things:
- Their clothing line is inspired by Banksy's work, not directly lifting it
- They got permission to use Banksy's work – which seems to imply that they are directly using it
Has Banksy ever licensed his artwork to a for-profit institution? No. He tends to release prints, tshirts, and other collections featuring his work in order to benefit nonprofits and the people for whom he advocates. He also encourages people all over the world to use his art freely for such purposes – essentially, an open-source format.
In fact, we can go right to the source and check the usage statement on the website of Banksy's organization, Pest Control:
"You are welcome to use Banksy's images for non-commercial, personal amusement. Print them out in a colour that matches your curtains, make a card for your gran, submit them as your own homework, whatever.
But neither Banksy or Pest Control licence the artist's
images to third parties. Please do not use Banksy's images for
any commercial purpose, including launching a range of merchandise
or tricking people into thinking something is made or endorsed by
the artist when it isn't."
Did Guess find a legitimate work-around? Or were they taking their chances, hoping that an anonymous artist would not pursue them in court?
Does Anonymity Negate IP Rights?
And this brings up one of the biggest questions in this case: Can an anonymous person enforce their copyright?
This is where it becomes complex. Banksy and Pest Control can start the process of filing a lawsuit. They can ask for early injunctions that may halt the misuse of Banksy's work. To some degree, the courts can and will work with anonymous artists to keep their identity screened during proceedings.
But a case that Pest Control won in Italy shows some of the shortcomings. While they were able to stop a gallery in Milan from selling unauthorized items with Banksy's images based on trademark rights, Pest Control could not take the case further to copyright enforcement. That would have required documentation with Banksy's real name.
Some point out that Banksy's 2005 book Wall and Piece features the prominent phrase "Copyright is for losers" on the first page – does this contradict his IP holdings at all? Legally, no. Upon inspection of the credits page, you will also notice that Banksy goes on to acknowledge: he has still "asserted his right under the Copyright, Designs and Patents Act 1988" regarding the book.
IP Can Protect the Spectrum of Artists
This goes to demonstrate, once again, that IP law is a flexible tool. Even an artist who professes radical views outside the system can use it. Ultimately, the goal is to empower creators to steer their work in the way they want it to be used.
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