There has been an unprecedented amount of media coverage of Banksy’s Girl with Balloon (2006) shredding incident since it took place at Sotheby’s London’s evening sale of contemporary art on 5 October 2018. But none of this has addressed a central issue: artists’ rights after there has been a transfer of ownership.

National and international intellectual property laws give artists various legal rights over their original works automatically when they are created – even when works are owned by someone else. Put another way, legal ownership of artwork by collectors is not absolute, but is qualified by overriding legal rights of artists that may be exercised over the first and all subsequent owners. These rights endure during an artist’s lifetime, and decades after death. They are enforceable not only in artists’ home countries, but also in most other countries worldwide.

Two principal types of artists’ overriding legal rights are economic. Copyright gives artists exclusive rights essentially over commercial reproduction, publication, communication, or merchandising of their original works or adaptations of them. Resale right gives artists exclusive rights to receive a small percentage of the price paid each time a work is resold in the secondary art market.

There are further overriding legal rights that are non-economic. Aimed at safeguarding the integrity and reputation of artists and their works, these rights were developed in France during the 19th century as droits moraux. Authors’ moral rights were enacted into the intellectual property laws of most countries by the end of the 20th century. Two moral rights are most commonly enacted: the right of paternity (to be identified as author of a work exposed to the public); and the right of integrity or respect (to object to any derogatory treatment of a work including any actions that distort or modify or mutilate the original form of its creation, when exposed to the public).

But returning to the case in point, none of these intellectual property rights gives artists overriding legal powers to access works they no longer own or possess. For example, an artist’s ownership of copyright in a work does not include the power to require an owner to allow the artist physical or digital access to the work in order to make copies for merchandising purposes; and the owner has no legal right to merchandise without licence from the artist; but the artist does have the legal power to do so if reproductions were made before the work left the artist’s possession. Similarly, the moral right of integrity is the legal right of the artist to object to derogatory treatment of a work by another person; not the power of the artist to access and execute treatment that changes a work owned or possessed by another person.

Unless of course an owner permits access and consents to the artist changing the work originally acquired. Is that what happened in this case? Or was Banksy’s shredding a curious act of vandalism? Did Banksy intend to shock spectators seeing the destruction of not only of one of the UK’s most cherished images, but also of an object of relatively high market value that had seconds before been sold for over £1 million. A waste? A radical departure from Banksy’s practice? Perhaps not, particularly if we unpack key events.

Banksy has always been true to his origins as a progenitor of guerrilla art. His work has always been generative art, in the sense that its key concern has been for an image (alone or coupled with epigrammatic text) to stimulate intellectual engagement of the spectator – invariably to think about their environment, and especially the location specifically chosen by the artist. In this case the site-specific location for the key performative element of this auto-destructive conceptual work was a live public auction room, in a world-leading auction house, located in an art market capital city, during a prestigious week in the contemporary art market’s calendar. Were there any messages for us – perhaps about capitalism, the contemporary art market, art as investment, art’s commodification, or cultural versus financial values? Are there credible clues or evidence to consider?

Banksy chose to stage the shredding event within the legal and business framework of an auction, at which three principal relationships operate: seller and auctioneer; buyer and auctioneer; seller and buyer. An unidentified seller had consigned the work for sale to Sotheby’s, whose sale catalogue entry stated:
B. 1974
signed and dedicated on the reverse
spray paint and acrylic on canvas, mounted on board, in artist’s frame
101 by 78 by 18 cm. 39 3/4 by 30 3/4 by 7 in.
Executed in 2006, this work is unique.
Read Condition Report Saleroom Notice
Authenticated by Pest Control.
Acquired directly from the artist by the present owner in 2006.

This provides good evidence that: the work is a Banksy original; the artist included the frame as an integral element of the work; the seller was not identified; the work’s uniqueness perhaps refers to its being signed and dedicated. Most significantly, it appears that the work was not owned and possessed by the artist. In which case the shredder hidden within the frame could have been installed by the artist when making the work in 2006, and was unknown to the present owner when consigning to auction. Or the shredder could have been installed recently, by the artist, with the present owner’s collaborative blessing in preparation for its consignment to Sotheby’s.

Media speculation has been rife. Most commentaries have focused on a video image of someone’s hands apparently using an electronic device in the auction room to trigger the shredding. Shred the Love | the Director’s cut was a short video posted on Banksy’s social media site twelve days after the shredding, including shots of the studio installation of the shredder within the frame, final auction bidding, the remote triggering, and swift removal of the shredded work by auction staff; plus a rehearsal of shredding in a studio.

Such evidence suggests it is unlikely that the shredder was installed in the frame when the work was made twelve years ago. It is more likely that it was installed with the owner-seller’s collaboration. In which case, the seller is likely to have had some ethical if not legal liability to the auction house: their consignment agreement would invariably have imposed obligations on the seller – for non-disclosure of facts material to the work’s condition and provenance. Such obligations would be aimed at indemnifying the auction house – for any subsequent claims made by a buyer that the work’s condition or provenance were significantly tainted. The legal relationship between the owner-seller and buyer would not be relevant to this assessment, which is based on their collaboration.

In the final analysis things turned out well for all parties including Banksy, because the highest bidder/buyer decided not to reject the shredded work, but to complete the auction transaction and pay to own it. Doubtless the buyer heeded contemporary art market expert advice that the transformed work – promptly re-titled by Banksy Love Is in the Bin with a new authenticity certificate – may already have a market value of three times its hammer price.

Did Banksy perhaps fail in the attempted subversion or disruption of the art and money nexus, and instead demonstrate how the status and value of an artwork can change?

© Henry Lydiate 2018

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.