Advice needed re-possible copyright infringement

[archer3005]

Hi.

 

I have created a deck of Tarot cards using graffiti images, based primarily on the art work of Banksy.

 

The images are all from publicly viewable graffiti, as opposed to the recent 'Dismaland' exhibition in Weston-Super-Mare, which was purpose built and required an entrance fee to view it. All the work I've used is unofficially attributed to Banksy, although there's no way of knowing this for certain.

 

Public graffiti, nomatter how popular the artist, is classed as criminal damage and carries a maximum sentence of 10 years upon conviction.

 

My question is this... if I were to commercially produce such a deck of cards, would I be opening myself to legal action?

 

I have tried to send messages to Banksy asking for permission, but there's been no reply as yet. Any profits from such a venture are to be donated to a social welfare charity.

[Mr.P]

Yes, you could be liable for copyright infringement unless you had definitive proof that the works were in the public domain. Being unable to identify or contact the artist is not an adequate defence.

[archer3005]

Thank you Mr. P

 

Some of the images remain in situ, while most were erased by local councils and property owners, or even defaced by fellow graffiti artists shortly after being painted. Can someone really lay claim to an act of vandalism(in law)?

[JoeyJoeC]

How can you be sure they are the work of bansky? As far as I've seen, he uses stencils like thousands of others. I've seen graffiti used on TV and other places, and I'm sure they don't have to track down the person who done it asking for permission.

 

I very much doubt he will win if he took you to court for using it, as then he would be admitting to vandalism.

[BankFodder]

Whoever is the artist of the original works, there are copyright issues to reckon with.

 

I don't imagine for a moment the Banksy is at all bothered by the prospect of being prosecuted vandalism – criminal damage.

 

I think that Banksy's ethic is basically that his art is donated to the community. I think that if he realised that somebody was making commercial profit from it by using his works on some kind of product, that you would soon get a pretty stern approach from his lawyers requiring payment of royalties and also destruction.

 

Even if it isn't Banksy, if the cards came to the attention of the copyright owner, I would expect that you would get the same treatment.

 

It may well be – as you say – that the proceeds are being donated to a charity – but I still think that what you're doing is extremely risky and you could find yourself with a lot of trouble on your hands which you really don't want.

[archer3005]

That's just it. There's no way of knowing for certain. He's said himself that he can't always authenticate his own work. Your point about admitting to vandalism/criminal damage mirrors my own thoughts.

[ThedaBara]

Hi.

 

I have created a deck of Tarot cards using graffiti images, based primarily on the art work of Banksy.

 

The images are all from publicly viewable graffiti, as opposed to the recent 'Dismaland' exhibition in Weston-Super-Mare, which was purpose built and required an entrance fee to view it. All the work I've used is unofficially attributed to Banksy, although there's no way of knowing this for certain.

 

Public graffiti, nomatter how popular the artist, is classed as criminal damage and carries a maximum sentence of 10 years upon conviction.

 

My question is this... if I were to commercially produce such a deck of cards, would I be opening myself to legal action?

 

I have tried to send messages to Banksy asking for permission, but there's been no reply as yet. Any profits from such a venture are to be donated to a social welfare charity.

 

Waste of time trying to get permission to reproduce his work… But difficult to prove that it's his work and not just a copy… Hmmm… tricky!

[ThedaBara]

I don't think he has ever prosecuted anyone for removing his work from their property… it's a grey area...

[archer3005]

Can a graffiti artist really have legal support for illegal activity? I take your point about the prospect of legal action, but in my naivety, I like to think that any self respecting graffiti artist would actually support my intentions.

[archer3005]

I'm aware that he owns the intellectual rights to his art, but it's the property owner of the 'canvas' that owns the finished product.

[andydd]

How can you be sure they are the work of bansky? As far as I've seen, he uses stencils like thousands of others. I've seen graffiti used on TV and other places, and I'm sure they don't have to track down the person who done it asking for permission.

 

I very much doubt he will win if he took you to court for using it, as then he would be admitting to vandalism.

 

Plus we would see his identity

[legalistic]

Archer3005, I used to be reasonably well up on intellectual property law but the disappearance of public law libraries has more or less put paid to that. I would think that, so long, as your work contains differences from the original then you would not be infringing. In fact you would be creating your own copyright. The good news is that, even if sued, for copyright infringement damages could not be claimed against you because there is no loss of income or profits relating to graffiti. You might also like to visit the Intellectual Property Office website.

[JoeyJoeC]

As far as I thought. You took the picture which was taken in a public place (or at least own the rights to it), therefore it is fine.

 

You don't see architects suing over people publishing books on interesting architecture. Why should graffiti be any different? Better get Google to remove their street view feature!

 

P.S. Wasn't bansky found to be more than 1 person?

[ThedaBara]

I'm aware that he owns the intellectual rights to his art, but it's the property owner of the 'canvas' that owns the finished product.

 

But what if the 'canvas' is your back wall?

[ThedaBara]

I heard about someone who managed to lift part of a large Banksy from the side of a bridge and somehow encapsulated it and who eventually sold it on for a lot of money… he didn't get it authenticated, though… I think he may have approached Banksy's company, Pest Control to try and get authentication and they told him where to go! (Allegedly)..

[ThedaBara]

As far as I thought. You took the picture which was taken in a public place (or at least own the rights to it), therefore it is fine.

 

You don't see architects suing over people publishing books on interesting architecture. Why should graffiti be any different? Better get Google to remove their street view feature!

 

P.S. Wasn't bansky found to be more than 1 person?

 

What, like Warhol?

[ThedaBara]

Archer3005, I used to be reasonably well up on intellectual property law but the disappearance of public law libraries has more or less put paid to that. I would think that, so long, as your work contains differences from the original then you would not be infringing. In fact you would be creating your own copyright. The good news is that, even if sued, for copyright infringement damages could not be claimed against you because there is no loss of income or profits relating to graffiti. You might also like to visit the Intellectual Property Office website.

 

Well put!

[unclebulgaria67]

There is a difference between the graffiti which cannot surely be copyrighted and the commercial art which his company sells or authorises people to sell.

 

Banksy always says through his agents that the graffiti is a free gift to the community where it appears. Only very occasionally does he authenticate an item e.g the picture of a couple painted on a door outside a community centre in Bristol.

 

I see no problem featuring graffiti on playing cards, but i suggest you label them that money is donated to x charity. You could also say work of unknown artist.

 

The other potential issue is the owner of the property where these graffiti images appear. Could they claim any rights over these ?

[caledfwlch]

"Banksy" as far as I know never, ever confirms whether an piece of artwork is his or not, hence there is absolutely no way of proving whether one is his or not.

 

I have seen it I think on that "4 Dealers" Channel 4 programme where someone was trying to sell what they thought was a Banksy, but it was pointed out that as he never confirms, there can be no proof of authenticity. so whilst you might get one on your wall, or manage to "save" on, buying it off a council or property owner, you are not necessarily going to make millions or even thousands, as there is no way to prove whether its genuine or not.

 

So a court claim from Banksy seems unlikely, as it would mean revealing his identity, and then probably getting his collar felt for thousands of graffiti and property defacement fines

 

Copyright can be a very odd beast though.

 

Police Boxes were designed for, or on behalf of the Metropolitan Police Service, but after a famous, bitter court case, the MPS Lost, and the BBC were given full copyright to the design as it is more recogniseable as the time machine from Doctor Who than it's original function.

 

At the other end of the scale, they have been attempting to pass EU wide legislation that would make city landscapes copyrighted, and thus taking a photo and publishing it of say, the Gherkin in London would be copyright breach.