Property Law: Who owns the Graffiti?

BanksyPicBy Dennis Crouch

Interesting property/copyright case from the High Court of England & Wales (chancery trial court).  Creative Foundation v. Dreamland Leisure, [2015] EWHC 2556 (Banksy judgment).

Banksy is a pseudonymous British street artist known for satirical and subversive graffiti. In 2014 one of his paintings appeared on the back wall of a game arcade in Folkestone(See image).  The building was owned by Stonefield Estates Ltd but the entire building is subject to a 20-year lease to Dreamland Leisure.  Seeking to capitalize on the work, Dreamland had the section of wall removed and put up for sale. (The Wall Now) Dreamland justified this move based upon the lease, which included a provision that would arguably require the tenant to remove or paint-over the artwork.

The Landlord (Lessor) transferred its rights to the work in quitclaim form to the Creative Foundation – a registered charity seeking to promote the art scene in Folkestone – who then sued Dreamland for possession.

Question: Who owns the artwork?

Holding: The Court (Justice Arnold) held that, although the tenant was justified in removing the graffiti, the landlord still owns the removed wall and image.

  1. [I]t is only necessary for me to reach a conclusion as to what term is to be implied into the Lease with respect to the ownership of a part of the demised premises which is justifiably removed by the Lessee from the premises, and becomes a chattel, in accordance with the Lessee’s obligation … to repair the premises, and which has substantial value. In my judgment the term which is to be implied is that the chattel becomes the property of the Lessor. My reasons are as follows.
  2. First, I consider that the default position is that every part of the property belongs to the Lessor. The Lessee only has a tenancy for a period of time. Thus it is for the Lessee show that it is proper to imply into the Lease a term which leads to a different result.
  3. Secondly, in my view the mere fact that the Lessee is discharging its repairing obligation does not lead to the implication that it acquires ownership of such a chattel. Dreamland’s argument is based upon the Lessee’s need to be able to remove items generated by the act of repair from the premises. But that would only justify the implication of a term dealing with permission to remove (and, where appropriate, dispose of) such items. It does not justify the implication of a term transferring ownership of the items: see Liverpool City Council v Irwin [1977] AC 239 at 245 (Lord Wilberforce) and compare Ray v Classic FM plc [1998] FSR 622 at 642-643 (Lightman J).
  4. Thirdly, even if a term may be implied with respect to the ownership of (i) waste or (ii) chattels with no more than scrap or salvage value, it does not follow that it should be implied with respect to the ownership of a chattel with substantial value. Such a term would not be necessary, would not go without saying and would not be one that would satisfy the officious bystander test.
  5. Fourthly, I do not consider that it makes any difference that the value is attributable to the spontaneous actions of a third party. It is fair to say that, whatever solution is adopted, one party gets a windfall. But who has the better right to that windfall? In my view it is the Lessor. Elwes v Brigg is at least consistent with this assessment.
  6. Accordingly, I conclude that the Foundation is correct that the defence advanced in paragraph 13 of the Defence is unsustainable as a matter of law.

This decision makes sense in general, although I don’t  understand why rights of possession should immediately go back to the Lessor – rather, the lease should seemingly provide possessory rights to the chattel for the next 20 years. (Of course, I have no precedent to cite for this conclusion. DC).

This case makes me think a little about Moore v. Univ. of California where a patient (Moore) sued his doctor who had properly removed Moore’s cancerous spleen but then then made $$$ from the cell line.  There, the court came to the opposite conclusion – that Moore had no right to his excised spleen.

But the Copyright: In dicta, the court also wrote that copyright to the work continues to belong to Banksy, which is somewhat interesting to me as well. Banksy owns the copyright even though his/her process of creating the work required commission of a crime and destruction of property.



14 thoughts on “Property Law: Who owns the Graffiti?

  1. 5

    What will be most interesting, on a lighter note, will be Banksy’s representation of the argument of property/copyright etc, impossible to portray in a mural? Watch this space,…or that space,…..or that space..

  2. 4

    The judge only said that *prima facie* copyright in the work belongs to Banksy, which is surely true. We have no express statutory exclusion in copyright on public policy grounds, but in Glyn v Weston the author’s claim to copyright was denied on the grounds of the work’s immorality and in the Spycatcher case the House of Lords stated (obiter) that Mr Wright would not have been able to enforce copyright in his work, given that it was written in breach of his obligations of confidence to his former employer. Whether there is no copyright, or only a copyright which the courts will not enforce, seems to be a nice question. In Banksy’s case, given his notoriety and the value of his work, should we be analysing his graffiti as gifts rather than illegal acts?

  3. 3

    I admit, I didn’t read the opinion, but wonder what moral rights exist in the copyrighted work. And whether cleaning it up constitutes an infringement.

  4. 2

    Another important copyright case:

    link to

    The [9th Circuit Appellate Court] judges ruled today that copyright holders “must consider the existence of fair use before sending a takedown notification.” Universal’s view that fair use is essentially an excuse to be brought up after the fact is wrong, they held. UMG’s view of fair use solely as an “affirmative defense” is a misnomer.

    “Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses,” wrote US Circuit Judge Richard Tallman for the majority. …

    “A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to 512(f) liability [under the DMCA, for bad faith takedown notices],” the opinion states.

  5. 1

    Banksy owns the copyright even though his/her process of creating the work required commission of a crime and destruction of property.


    1) Can Banksy prove that he painted it?

    2) Do all criminals own copyrights to their “artwork”? Or is that just the privilege of criminals whose work is admired, for whatever reason, by wealthy people?

    1. 1.1

      I suppose that there’s potentially a difference between “owning” a copyright and being able to enforce it. At some point perhaps something like the doctrine of unclean hands comes into play?

      In some countries, authors/artists have moral rights that give them a right to protect the “integrity” of their work, even if they’ve transferred ownership of it. I wonder how that plays out in the context of criminal trespass/vandalism.

      1. 1.1.1

        At some point perhaps something like the doctrine of unclean hands comes into play?

        There’s that and there’s also the problem of determining whether the cost of claiming ownership of the vandalism outweighs the benefits of moneytizing one’s copyright for “the work.”

    2. 1.2

      MM, why cannot criminals own property? Should we strip Bill Clinton of his just because he copped a plea?

      1. 1.2.1

        why cannot criminals own property

        I’m not suggesting that criminals “can’t own property”. They surely can.

        I’m just following Dennis’ skepticism — which is reasonable skepticism — and wondering why every criminal can’t call his/her acts of destruction or vandalism “art” and claim copyright ownership of the results ( (the “expressive” aspects anyway) with all the “rights” accompanying that ownership.


          MM, something like the common law rule that an orphan who kills his parents cannot inherit?

          Yeah, I can see that defense being made if the vandal asks for his “share.”


          Seems like the distinction between chattel and copyright has ya tripp’n.

          Not sure of UK’s copyright, but the distinction in US leaves the chattel unaffected so long as the use of the chattel does not violate one of the exclusive rights of copyright [reproduce & distribute, derivative work, and public display (as defined in statute)]. Biggest issue would be public display – to show the blanksy work to the public, e.g., art gallery. But, the nature of the work most likely would be ajudged an implicit license to display it publically. Bigger issue is 106A but i’m sure they won’t destroy the wall – that is the issue after all of the case.

    3. 1.3

      “Can Banksy prove that he painted it?”

      If a new work is genuine, usually a photo appears immediately afterwards at

      Website currently advertises Dismaland – a “family theme park unsuitable for children.” Maybe I should go before it closes (it’s only about 30 miles away).

      (“The following are strictly prohibited in the Park – spray paint, marker pens, knives and legal representatives of the Walt Disney Corporation.”)

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