It was recently reported that the building on which one of Banksy’s latest murals was painted had been demolished, destroying the mural in the process. Titled ‘Morning is Broken’, the mural, which depicted the silhouette of a young boy and his cat pulling open “curtains” made of corrugated iron, was reportedly destroyed on the same day Banksy confirmed the work as his. But surely tragedies such as this are avoidable?
In law, “land” includes buildings and fixtures. Once something is painted on a wall, it becomes part of the land. A work created by Banksy on a wall belongs to the landowner to do with largely as they please – albeit the artist may assert intellectual property rights if the mural is destroyed (Cohen v G&M Realty LP). Of course, owing to the astronomical market for Banksy works, many landowners are inclined to cut Banksy murals out of walls for resale; however, this is not as straight forward as many expect.
Banksy has publicly denounced the sale of murals. Therefore, Banksy’s authentication board, amusingly titled “Pest Control”, will not generally issue certificates of authenticity for any Banksy street art. Pest Control’s statement regarding the value of a certificate of authenticity considers that without one you cannot ‘buy, sell or insure a piece of art knowing it’s legitimate’.
Accordingly, some auction houses are unwilling to sell a Banksy mural, and the value of said mural will be affected. Indeed, Helen Dunlap, formerly the head of the Private Client Group at Sotheby’s in London, was quoted in the New York Times stating, “we would never touch that because it’s not how the artist intended it to be sold,” continuing, “whenever buildings have a Banksy on them, that Banksy is much more valuable on the building than it is as a piece of brick.”
Further, cutting the mural from the wall for private sale can give rise to costly legal disputes. For example, in The Creative Foundation v Dreamland Leisure Limited (in which Tim Maxwell, Head of Art & Luxury acted for the successful claimant) two questions arose: whether it was reasonable for Dreamland Leisure to remove the artwork during essential repairs to the building; and whether the company still owned the artwork once it was removed. The court were narrowly persuaded that Dreamland Leisure was complying with their obligation to repair the building, although it was not agreed that the removal was reasonable – meaning the mural was to be returned to the ownership of the landowner. Being a novel area of law, it is undoubted that new questions will arise which require Court intervention.
So, what is the correct thing to do should a Banksy mural appear on the wall of your property? Leave it! Commercially, buildings with Banksy artworks attached see their value skyrocket. For example, it has been reported that the property attached to Banksy’s 2022 mural “PARKing” of 908-910 S. Broadway in downtown Los Angeles saw the property’s asking price increase from $16m to $30m. Leaving a Banksy mural in situ is also beneficial for the local community, as not only do the public enjoy the mural as intended, but local property prices have been reported to rise significantly: property on Frogmore Street (location of Banksy’s ‘Well Hung Lover’) sells for an average of 320% more than other property in the same postcode. The downside is that unfortunately Banksys are also a target for vandalism and if physical security is required this can rapidly become expensive.
It is also worth noting, that landowners can be restricted by the public as to how they treat Banksy murals. In 2015, Banksy’s “Spy Booth” was granted listed protection through a third-party application for retrospective listed building consent (becoming an authorised part of the listed building) – despite the protestations of the landowner. This protection means that the landowner will need to seek certain permissions before dealing with the mural.
Key points
- A parcel of land includes buildings and fixtures. Once something is painted on a wall, it becomes part of the land (subject to certain intellectual property rights that the artist may assert).
- If you are lucky enough to find a Banksy mural painted on your building, think carefully before you attempt to sell it. You might be missing an opportunity.