As the multi-millionaire anarchic ‘guerilla’ graffiti artist, Banksy took great pleasure in declaring “copyright is for losers”.
But now the anonymous street artist has been stripped of a trademark for his most famous artwork, the “Flower Thrower”, because he failed to reveal his identity to judges and was found to have dishonestly conducted parts of his legal battle with a UK card company.
The ruling could see the Bristol artist’s other applications to protect legally his creations challenged in the UK, Europe and America.
In a scathing judgment following a two year fight with card makers Full Colour Black, three judges said Banksy had made freely available graffiti he secretly daubed on other people’s property and repeatedly insisted he did not want to use it on merchandise.
The panel, part of the European Union Intellectual Property Office, said: “Banksy has chosen to remain anonymous and for the most part to paint graffiti on other people’s property without their permission rather than to paint it on canvases or his own property.
“He has also chosen to be very vocal regarding his disdain for intellectual property rights… It must be pointed out that another factor worthy of consideration is that he cannot be identified as the unquestionable owner of such works as his identity is hidden; it further cannot be established without question that the artist holds any copyrights to graffiti.”
In 2014, Banksy, represented by Pest Control Office Ltd, successfully applied for an EU trademark of the Flower Thrower nine years after it first appeared on a wall in Jerusalem.
The work also featured on the cover of his 2006 book, Wall and Piece, in which he mocked copyright. He then invited people to download his works for “amusement and activism”, but not for profit, insisting he would never merchandise his works through cards, mugs or T-shirts.
Many other companies have photographed his art on display in public before reproducing it on posters and in books.
Full Colour Black, which specialises in “the commercialisation of street art” and is owned by Andrew Gallagher and uses Banksy’s art, challenged his EU-wide trademark claiming he was not entitled to a trademark because he did not use it to trade or as a brand, but created it as artwork.
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In October last year, Banksy suddenly opened a shop showing his works, including versions of the Flower Thrower, and offered it for sale online.
In an interview he said the shop’s works were created “for the sole purpose of fulfilling trademark categories” as part of his dispute, adding how they were created from a “not very sexy muse”.
The judges heard evidence suggesting Banksy had used the copyright of others, as well as declared “any advert in public space … is yours to take, re-arrange and re-use.”
Although the judges were only considering Banksy’s trademark, a mechanism designed for consumers to identify origins of goods and services, they noted that if ever he applied to exert rights over his graffiti using copyright laws, meant to protect artworks, “it would be quite difficult” to do so while he remained anonymous and relied only on a company to represent him in court.
Referring to the use of the Flower Thrower in his 2019 shop, they found “his intention was not to use the mark as a trademark to commercialise goods... but only to circumnavigate the law. These actions are inconsistent with honest practices.”
The trademark was declared “invalid” on the grounds of “bad faith”.
Aaron Wood, trademark attorney from Blaser Mills who represented the card company, said the ruling was “devastating” for Banksy.
“He will need to consider whether any of his trademarks for his artworks are actually valid,” he said. “In the EU he faces a string of further applications against his other trademarks.
“He has historically not taken action for copyright infringement against people using his images, in part that can be down to his view that copyright is for losers, but also due to his insistence people were free to use his work, but equally it could be because if he were to sue he would need to identify himself as the artist and the misty cloak of anonymity would slip away.”