Banksy's Fake Store Is an Attempt to Abuse Trademark Law to Avoid Copyright Law
techdirt.com
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First, I really didn't like the tone of the card company. They're selling someone else's work (whether legal or not), and then were condescending toward the person who made it. They say they're just trying to honor Banksy, but they paint him as an out-of-touch rich asshole.
Second, it's hard to know for sure, but I think this analysis misses the bigger point... I feel like opening a small shop that isn't real is very Banksy-esque, and likely is more of a statement on trademark than him actually trying to enforce a trademark. This is clearly just an exhibit + marketing. (It's a glass storefront, after all)
That’s because that’s how he has treated them. Lying about them and what they are doing is nasty. That’s what Banksy did.
What the card company is doing is to take advantage of his desire to be anonymous and make money from his work.
The other point is that Banksy is lying about this small business and what they are doing. This is an objective fact. He claims they sued him. They didn’t. He claims they are a big corporation. They aren’t.
Maybe it's moot, but... yes, Banksy makes a lot of money off his work sometimes.
But there's some things worth mentioning:
1. He also spends a lot of money on his work (look at Dismaland, which was only $1/ticket). 2. Much of his high-priced work is sold by private collectors and he doesn't get the money 3. Or, the one he did sell directly was art itself, and the sale was part of the art (it got shredded) 4. And lastly, he donates it. Like all the profits from this store are getting donated.
I wouldn't necessarily confuse "there's a lot of money surrounding Banksy" with "Banksy is rich".
The only comment I have is that I have to fault the article for making a lot of assumptions and leaps to conclusions on Banksy’s intentions, it sort of unilaterally declares that Banksy is selling out and cheating the system.
But what they want is far simpler: they don’t want other people claiming they’re Banksy, and they want to remain anonymous.
The article gets upset at Banksy as a corporate sellout as if they opened up a line of art pieces for sale at Walmart or Target. What Banksy did is more akin to opening up a UPS Store mailbox in order to have an address on file.
Sounds like a perfect case for public key cryptography, although it doesn't help with duplicates - but duplicates help his work sell anyway.
Would be interesting to see how it could be applied to something visual that is reproduced in non-pixel perfect ways.
No. This is obviously not the problem. Nobody at that greeting card company was claiming to be Banksy. The problem is that they are making money off of a Banksy work of art without his permission.
His behavior is quite clearly protecting his financial interests in his own work. That’s actually the only explanation that makes sense. The other option being that he’s opposed to anybody making money off his art, including himself. Nothing he has done in the last year has indicated the latter to be the case.
>> In February this year, the judge ruled in favour of Banksy’s request for all merchandise bearing his name to be removed from the museum’s shop, but promotional materials using his name were allowed to remain. The judge noted that the documents filed in the proceedings showed a limited use of the Banksy brand.
Banksy should have GPL'd his works. Seriously.
Everyone creating artwork derived from Banksy's works, including merchandise articles, would be required to provide the sources. So if for example an Italian Museum decides to sell flower bomber T-shirts everyone could just use the design files to order at CafePress. This would promote the unrestricted dissemination of his works while putting natural limits on the commercialization by others.
But in either case, both CC and GPL are based on copyright, therefore cannot use.
Why can't he use copyright? I didn't quite follow this line of thinking in the original article as well. As far as I understand it copyright per se is automatic (nowadays), so you don't have to file for it. So this doesn't prevent him from staying anonymous.
Tradmarks on the other hand have to be registered. How does he hide his anonymity in this case?
Now enforcing his rights is a completely different matter. He certainly can't hide his name from the courts then and it might even become public. But in this case there is no difference between a copyright lawsuit and a trademark lawsuit.
I am far from being a lawyer, but this makes sense to me - a trademark is designed to be associated with a brand, copyright is designed to designate a person/group as something's creator.
Citation needed. GPL can work for anything.
https://www.gnu.org/licenses/gpl-faq.html#GPLOtherThanSoftwa...
https://en.wikipedia.org/wiki/GNU_General_Public_License#Tex...
Both of those seem like reasonable desires. Nobody's disputing that he's the creator after all. It looks to me like copyright law is broken, but I guess parliament won't be rushing to fix it to plug gaps for edge cases involving anonymous street artists.
What surprises me more is that there isn't a wave of faux Banksys flooding the market - sure the artist has a style but it's not absolutely unreproducible. And if, in legal terms, nobody's Banksy doesn't that mean that we're all Banksy?
Most certainly not, I can barely draw a stick figure.
I'm happy he is selling his work to people for lots of money, they are idiots for buying it, doesnt mean the works aren't good, but they are still idiots.
Honestly it's frustrating to watch an anonymous entity decorate the city while still expecting people not to use their work. The way banksy has established themself as a figure would indicate they want the art to be free and open for all to use. You cannot have your cake and eat it too, which is to say you cannot be anonymous and trademark your artwork.
Three may keep a Secret, if two of them are dead
That an artist cannot have a pen name and remain anonymous seems to be a fault with the current system, not with the choice to remain anonymous.
But is it true? By everyone's admission he isn't selling shoddy kitsch like post cards and fridge magnets. All that's left to sell is the original works, and to the best of my knowledge the people who can actually sell those are usually the owner of the wall itself. He pulled that stunt with the Sotheby's auction. Did he actually get any money after that self destructed? Does anyone anywhere actually have an estimate on how profitable the Banksy operation is?
And as for the "we're making his work more accessible" argument from the gift card sellers - isn't that what every pirate ever has said to justify profiteering from other people's creation?
Indeed it's a strange world if he, on principle, refuses to profit by his work but other people must be allowed to.
That exact situation exists in many free software situations... doesn't it?
The potential non-copyrightability of graffiti I understand but I am failing to understand the anonymous ownership issue. Why he cannot transfer the copyright for the work to a corporation which enforces the copyright? -- it isn't like he needs to register the work before transferring it to the company, the berne convention assures that.
In the US copyrightable works can be copyrighted by an anonymous or pseudononymous creator. There's even a box to check if the creator is anonymous.
https://www.copyright.gov/eco/help-author.html
Perhaps in the EU anonymous works can not be copyrighted?
He can’t transfer it because that (in general) must be done in writing and with a signature. Any target of copyright litigation will demand to know who is purported to have assigned copyright, so just putting “Banksy” there won’t hold up. Those are the evidentiary issues.
Given Banksy’s anti-capitalist, semi-anarchist stance, and utilization of public property for his own fame, I can’t think of any better means for him to honor himself than to allow people to rip off his work freely.
I certainly can see the case against those who misappropriate bad work to his name — artistic integrity is important. There is also nothing wrong with him wanting to make money. But I see no moral problem with selling knick knacks with banksy imagery on it.
FWIW I love his art and his moral stance. Just can’t have your cake and eat it.
Is that how the copyright works in the UK??? Like I can photograph anybody's art and just sell prints? That doesn't sound right.
Interestingly, for the UK this seems to claim full freedom of panorama, seemingly contradicting the law quoted in your sister comment at https://news.ycombinator.com/item?id=21369261
The closest that UK copyright law gets is that there's an exemption for photographs of "sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public". (See section 62 at https://assets.publishing.service.gov.uk/government/uploads/... .)
But Banksy's pictures are just straight "artistic works". There's no need to class them as "works of artistic craftsmanship" and I don't believe any court would do so.
The infringers are either deliberately misreading copyright law or simply ignorant of it. I suspect the latter.
His works are generally permanently situated in a public place. I would think that taking a picture of any random public wall with graffiti on it is legal. But you seem to be saying that there are two kinds of art, and that the kind that is “worse” gets protection, but the better kind didn’t get protection. Very odd.
And if he painted something without permission on a wall owned by a Government, funded by "The People", I don't have a problem with anyone trying to profit from it via photographic reproduction (modulo local copyright / ownership laws of the country the wall is in).
Warhol made art from someone else's Campbell Soup cans and everyone loved that....
Hacking a Banksy with Bash and Varanid: https://news.ycombinator.com/item?id=21368691
The article plays on sympathy for the "poor little home run shop" versus Banksy ressorting to "evil lawyers". Feel like it's grossly misrepresenting the matter on purpose.