October 24, 2013
By Oliver Herzfeld
On Tuesday October 22, 2013, a sculpture of a sphinx made of foam, cement and cinder-blocks appeared on a sidewalk in Queens, New York surrounded by a wide pool of putrid water. On his website, the mysterious and anonymous artist known as Banksy claimed ownership of the work, “Everything but the kitchen Sphinx”, stating: “No turn unstoned. A 1/36 scale replica of the great Sphinx of Giza made from smashed cinderblocks. You’re advised not to drink the replica Arab spring water.” According to the New York Post, an art gallery representative paid the owner of a nearby auto-glass shop, Bernardo Veles, to recruit a team to dismantle the sculpture and load it onto a moving truck that quickly carted it away. Approximately two dozen Banksy fans observed the taking in dismay. One of the members of Mr. Veles’ team sold a brick from the base of the sculpture to a spectator for $100.
This is certainly not the first time Banksy’s artwork has been displaced. Nonetheless, the situation here is materially different than the frequent scenario where Banksy renders his artwork on building walls only to have the building owner paint over the artwork or remove the relevant portion of the wall for likely auction or private sale. In such situations, Banksy’s legal rights are trumped by the rights of the building owners to do as they wish with their property. But in this case, Banksy did not trespass on the private property of others. The sculpture is essentially a street installation that Banksy created on a public sidewalk. So the question arises: What rights and remedies may be asserted against the expropriators of Banksy’s sphinx?
Under New York’s penal law, any wrongful taking or obtaining of property from its rightful owner with an intent to retain and exercise control over it (or enable another person to do so) constitutes larceny. In this case, the members of Mr. Veles’ team could be charged with a certain type of larceny under New York law called “common law larceny by trespassory taking” which means the taking of personal property without the owner’s consent. Since Banksy’s sphinx almost certainly exceeds $1,000 in value, the theft would constitute grand larceny which carries a maximum sentence of 4 to 25 years in prison or a fine which is the greater of $5,000 or double the amount of the defendant’s gain from the commission of the crime.
U.S. copyright law extends protection to “original works of authorship fixed in any tangible medium of expression.” The U.S. Copyright Act provides the creator of a work of art the exclusive right to display, sell and make copies of the artwork, as well as to produce derivative works. Placing a work of art in a public place does not relegate it to the public domain or otherwise lessen or deprive an owner of any of the foregoing rights under copyright law. The available legal remedies under copyright law include injunction, damages, costs and attorney’s fees. Therefore, Banksy could bring civil copyright infringement claims against any party involved in attempts to display, sell or make copies of his sculpture.
Visual Artists Rights Act
The Visual Artists Rights Act of 1990 (VARA) is a little-known and infrequently-invoked federal law that, among other things, grants creators of works of visual art produced for exhibition the right to prevent mutilation or modification of such works. VARA also grants creators of works of “recognized stature” (a term that is not defined in the statute or in any court case to date) the right to prohibit intentional or grossly negligent destruction of such works. The legal remedies available for a violation of VARA are the same as the remedies stated above for copyright infringement. Thus, Banksy could also potentially bring claims under VARA against any party involved in the dismantling, mutilation or modification of his sculpture.
Of course, all of the foregoing is strictly hypothetical since it would require Banksy to actually press charges, file claims or otherwise assert his rights. In reality, given the importance Banksy places on maintaining his anonymity and privacy, as well as the illegal nature of some of his acts that could expose him to civil and criminal claims and liability, it is highly unlikely that Banksy will pursue any of the above-mentioned avenues of legal recourse.